White v. State, WD 60640.
| Decision Date | 10 December 2002 |
| Docket Number | No. WD 60640.,WD 60640. |
| Citation | 91 S.W.3d 154 |
| Parties | William R. WHITE, Jr., Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Andrew A. Schroeder, Assistant State Public, Defender, Kansas City, MO, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for respondent.
Before SMITH, P.J., SMART and HARDWICK, JJ.
William White appeals the denial of his Rule 24.035 motion following an evidentiary hearing. We vacate the judgment and remand the cause for dismissal because White's postconviction motion was untimely filed.
On May 9, 2000, White pled guilty to first-degree assault and armed criminal action and was sentenced to two concurrent twelve-year prison sentences. He was delivered to the Department of Corrections on May 11, 2000. On August 10, 2000, White filed a pro se Rule 24.035 motion for postconviction relief. The motion court dismissed the motion as untimely, pursuant to Rule 24.035(b), because it was filed more than ninety days after White was delivered to the Department of Corrections.
White filed a motion to reconsider the dismissal. The motion asserted White had sent a letter to the court on July 31, 2000, indicating his intent to file a Rule 24.035 motion. White contended the letter substantially complied with Criminal Procedure Form 40 and requested that it be considered as his timely filed Rule 24.035 pro se motion.
The motion court granted the motion for reconsideration, allowing White to proceed on his postconviction claim. On November 28, 2000, White's appointed counsel filed an amended Rule 24.035 motion. Following an evidentiary hearing on the amended motion, the court denied postconviction relief. White appeals, claiming the court erred in refusing to vacate the judgment of conviction because his plea counsel coerced him into pleading guilty.
Before considering the claim of error, we must address the State's contention that the motion court lacked jurisdiction to rule on the merits of White's postconviction claim because it was untimely filed. Rule 24.035(b) requires that a motion to vacate, set aside or correct the judgment or sentence be filed within ninety days of the date the defendant is delivered to the Department of Corrections. This time limit is constitutionally valid and mandatory. Stidham v. State, 963 S.W.2d 351, 353 (Mo.App. W.D.1998). Movant must demonstrate timely filing of a pro se motion as a condition precedent to pleading a claim for postconviction relief. Id. An untimely filing is a fatal defect, which cannot be cured and constitutes a complete waiver of any right to proceed on any claim under Rule 24.035. Id. The timeliness issue on a postconviction claim is jurisdictional and must be addressed on appeal. Unnerstall v. State, 53 S.W.3d 589, 590 (Mo.App. E.D.2001).
White's pro se Rule 24.035 motion was filed August 10, 2000, ninety-one days after he was delivered to the Department of Corrections on May 11, 2000. Despite the untimely filing, the motion court allowed White to proceed with the postconviction claim based on a letter, dated July 31, 2000, that White had previously sent to the court. The court agreed with White that the letter substantially complied with Criminal Procedure Form 40 and could be treated as a timely filed pro se postconviction motion under Rule 24.035(b), which provides in relevant part:
A person seeking relief pursuant to this Rule 24.035 shall file a motion to vacate, set aside or correct the judgment or sentence substantially in the form of Criminal Procedure Form No. 40.
Form 40 serves as a procedural guide to filing motions for postconviction relief. The form instructs movant to concisely state, among other things, "all the claims known to you for vacating, setting aside or correcting your conviction and sentence[,]" and "the facts supporting each of the claims set out ..., and the names and addresses of the witnesses or other evidence upon which you intend to rely to prove such facts[.]"
White's July 31 letter requested the court to help him obtain "the paperwork to file this [Rule 24.035] motion in a timely manner." White explained in the letter that he had not sought the Form 40 earlier because...
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Hamilton v. State, ED 110209
...a prisoner initially sent a letter to a trial court informing it of his intention to file a Form 40 to undo his guilty plea. 91 S.W.3d 154, 156 (Mo. App. W.D. 2002). The prisoner later untimely filed a pro se motion, but argued his letter substantially complied with Form 40 making his motio......
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Hamilton v. State
...a prisoner initially sent a letter to a trial court informing it of his intention to file a Form 40 to undo his guilty plea. 91 S.W.3d 154, 156 (Mo. App. W.D. 2002). prisoner later untimely filed a pro se motion, but argued his letter substantially complied with Form 40 making his motion ti......
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Snyder v. State
...pursuant to this Rule 24.035.” Rule 24.035(b). The prescribed time limits are constitutionally valid and mandatory. White v. State, 91 S.W.3d 154, 156 (Mo.App. W.D.2002). Where a movant fails to file his or her motion within the time allowed, there is a complete waiver of the right to seek ......
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Wolf v. State
...Form 40." Rule 24.035(b). " Form 40 serves as a procedural guide to filing motions for postconviction relief." White v. State , 91 S.W.3d 154, 156 (Mo. App. W.D. 2002). The use of Form 40, or submitting a motion that substantially complies with its requirements, provides the State and the c......