Opinion
No. 61739.
November 10, 1992. Rehearing Denied and Transfer to Supreme Court Granted January 4, 1993. Case Retransferred to Court of Appeals April 20, 1993. Original Opinion Reinstated April 30, 1993.
Dave Hemingway, St. Louis, for movant/appellant.
william L. Webster, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant, Andrew Carrothers (movant), appeals from the denial, without an evidentiary hearing, of his Rule 24.035 motion for post-conviction relief. Movant pled guilty to illegally selling a controlled substance in violation of § 195.211 RSMo (Supp. 1991). After determining movant to be a class X offender under § 558.019 RSMo (Supp. 1991), the trial court sentenced movant to ten years' imprisonment. We reverse and remand.
In his sole point, movant contends the motion court erred "in concluding that the state proved and that [movant] admitted [three] prior convictions, where the record shows the state identified only [two] prior convictions in support of the class X charge and [movant] did not admit the truth of the allegations in the amended petition." The state has conceded error, and the record supports movant's contention. Accordingly, we reverse the motion court's order denying movant's request for post-conviction relief. The cause is remanded to the sentencing court for a hearing to determine whether movant is a class X offender. On remand, the sentencing court "is free to resentence in accord with the findings and the appropriate sentencing statute." Nash v. State, 775 S.W.2d 338, 339 (Mo.App. 1989).