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September 7, 1993


Appeal from the Circuit Court of St. Louis County. Hon. Robert W. Saitz

Reinhard, Crandall, Jr., Crist

The opinion of the court was delivered by: Reinhard

Movant appeals from an order of the circuit court denying his Rule 24.035 motion without an evidentiary hearing. We affirm.

Movant was indicted for sale of a controlled substance, § 195.211, *fn1 and possession of a controlled substance, § 195.202. He was subsequently charged by an information in lieu of an indictment as a class X offender. He pled guilty to both counts and was sentenced to concurrent terms of six years imprisonment on July 23, 1991. He was delivered into the custody of the Department of Corrections on July 29, 1991. On October 21, 1991, he filed a pro se Rule 24.035 motion. On December 31, 1991, his counsel filed an amended Rule 24.035 motion. The court found both motions to be untimely filed but nevertheless examined the merits of his case. The court issued detailed findings of fact and Conclusions of law which rejected movant's claims as legally insufficient to entitle him to an evidentiary hearing and further found that his claims were refuted by the record.

Movant first contends that the trial court erred in finding that his motion was untimely filed. The State acknowledges that it was timely filed, and we agree.

In his second point he argues that the case must be remanded because of the failure of the court to make proper findings and Conclusions on his "challenge to the court's failure to grant him adequate credit for the time spent incarcerated in prison while awaiting Disposition of the underlying charge." He asserts that "the existing record does not conclusively refute the allegation that he deserved credit through August 7, 1990, which warrants hearing so that may prove the court's failure to grant proper credit . . . ."

The dispositive issue here is not a question of improper findings, but whether the failure to grant jail-time credit is cognizable under Rule 24.035. If it is not, a remand to the motion court for findings would serve no purpose.

The districts of the Court of Appeals have differed on the issue of whether a claim for jail-time credit may be reviewed in a Rule 24.035 proceeding. The Western District has consistently held that Rule 24.035 (and previously Rule 27.26) does confer jurisdiction to confess the failure to grant mandatory jail-time credit. See Scott v. State, 770 S.W.2d 269 (Mo. App. 1989); Jones v. State, 767 S.W.2d 90 (Mo. App. 1989); Hart v. State, 588 S.W.2d 226 (Mo. App. 1979). The Southern District agrees with the Western District. See Grove v. State, 772 S.W.2d 390, 398 (Mo. App. 1989). We have held otherwise. See Self v. State, 774 S.W.2d 576 (Mo. App. 1989); Vance v. State, 773 S.W.2d 128 (Mo. App. 1989); Stout v. State, 745 S.W.2d 237 (Mo. App. 1987).

It appears to us that our Supreme Court has resolved this issue in its recent case, State ex rel. Jones v. Cooksey, 830 S.W.2d 421 (Mo. banc 1992). In that case, Richard Austin applied for a Writ of habeas corpus with the circuit court asking it to award him jail-time credit as ordered by the sentencing court. The circuit court found in favor of Austin and ordered the department to credit him with the jail time as ordered. The Court of Appeals determined that the habeas court was without jurisdiction to order such credit and quashed the record and judgment. The Supreme Court transferred the cause for consideration. In determining whether the habeas court had exceeded its jurisdiction, the supreme court began its analysis by questioning "whether the sentencing court had jurisdiction to award the jail time in question." Id. at 424. (Emphasis in original).

The court reviewed § 558.031, which addresses jail-time credit, and noted "that every provision of § 558.031 appears clearly to contemplate that the department [of corrections], and not the sentencing court, is to be the actor in the crediting of jail time" Id. The court went on to hold "that this statutory scheme contemplates an administrative and not a judicial determination of the jail time to be credited, with no sharing of jurisdiction between the two branches of government." Id. at 425. The court found that the habeas court did not have jurisdiction "if its decision was based solely on that of the sentencing court." Id. at 426, (Emphasis in original).

Cooksey did not involve a Rule 24.035 motions, but its reasoning applies here. It is clear that any jail-time credit is to be awarded by the Department of Corrections. Therefore, as the sentencing court has no jurisdiction to grant jail-time credit, the failure to consider it cannot be said to present a claim under Rule 24.035. Movant should pursue an administrative remedy and, if this fails, extraordinary relief may be available under . See Id. at 426.

Thus, the court did not commit reversible error in failing to make findings of fact and Conclusions of law on a claim not cognizable by the court, Reagan v. State, 751 S.W.2d 793, 795 (Mo. App. 1988).

Judgment affirmed.

James R. Reinhard, ...

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