Criminal Law: Motion to Vacate/Set Aside Order-Ineffective Assistance of Counsel

Defendant appealed the trial court’s denial of his amended motion to vacate. Defendant asserted a claim of ineffective assistance of counsel, alleging that counsel failed to advise him of a lesser included offense to one of his charges, which rendered his guilty plea unknowing and involuntary. Defendant also alleged that counsel failed to object to the state’s comments during sentencing. The trial court granted defendant’s claim as to his guilty plea but rendered no findings of fact on his second claim. The trial court failed to render findings of fact or conclusions of law after defendant moved to vacate or set aside.

Where the state’s response to defendant’s motion did not include suggested findings of fact and conclusions of law, the trial court erred in denying defendant’s claim “for the reasons set forth in the State’s response.”

Judgment is reversed and remanded.

Elston v. State (MLW No. 81072/Case No. SD37912 – 4 pages) (Missouri Court of Appeals, Southern District, Borthwick, J.) Appealed from circuit court, Greene County, Jones, J. (Ellen Flottman, Colombia, for appellant) (Alex Beezley, Jefferson City, for respondent)