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10/12/93 GREGORY L. JONES v. STATE MISSOURI

October 12, 1993

GREGORY L. JONES, APPELLANT,
v.
STATE OF MISSOURI, RESPONDENT.



APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY. The Honorable Michael Hugh Coburn, Judge

Before Ulrich, P.j.; Berrey and Smart, JJ.

The opinion of the court was delivered by: Smart

Gregory L. Jones, defendant, appeals from the denial of his Rule 24.035 motion without an evidentiary hearing. Defendant pleaded guilty to one count of robbery in the first degree, in violation of § 469.020, RSMo 1986 and one count of armed criminal action, in violation of § 571.015.1, RSMo 1986. The trial court sentenced defendant to ten years imprisonment and three years imprisonment, respectively. The sentences were ordered to run concurrently.

The judgment denying the Rule 24.035 motion is vacated and the case is remanded for dismissal of the motion.

On December 30, 1990, Defendant Jones and his accomplice entered a service station and robbed the attendant with a .357 Magnum revolver. Defendant emptied the safe and the cash register while his accomplice locked the attendants in the bathrooms. Defendant was originally charged by a four count information with two counts of robbery in the first degree and two counts of armed criminal action.

On April 17, 1991, defendant, represented by Mary Young, pleaded guilty to one count of first degree robbery and one count of armed criminal action. In exchange for defendant's guilty plea, the State and Jones agreed to the following: 1) the State would recommend that defendant be sentenced to ten years on the robbery charge and three years on the armed criminal action charge; 2) the State would recommend that the sentences run concurrently; 3) the State would dismiss the additional robbery and armed criminal action charges; and 5) defendant would testify against his accomplice. The trial Judge sentenced defendant in accordance with the plea agreement.

Defendant was delivered to the custody of the Missouri Department of Corrections on November 1, 1991. On February 19, 1992, defendant filed a pro se motion to vacate, set aside, or correct judgment or sentence under Rule 24.035 alleging that Mary Young had rendered ineffective assistance of counsel. On March 3, Anthony Cardarella from the Appellate Defender's Office entered his appearance as Jones' attorney. Mr. Cardarella filed an amended motion on defendant's behalf on May 4, 1992. The trial court denied defendant's motion without a hearing on September 4, 1992. Defendant appeals from the trial court's judgment.

Defendant raises two claims of ineffective assistance of post-conviction counsel. However, we need not address defendant's points because he did not follow the proper time limitations for filing his Rule 24.035 motion. According to Rule 24.035(b), defendant has ninety days from the time defendant is delivered into the custody of the department of corrections in which to file a motion to vacate or set aside his sentence. Defendant was delivered to the custody of the Missouri Department of Corrections on November 1, 1991. Defendant waited until February 19, 1992, to file his pro se motion under Rule 24.035. Approximately one hundred and ten days elapsed during this time. Defendant had until January 30, 1992 to timely file his motion. Thus, defendant's pro se motion was time barred.

It is well settled Missouri law that the time limitations of Rule 24.035 (and its counterpart in non-guilty plea cases, Rule 29.15) are both valid and mandatory. State v. Blankenship , 830 S.W.2d 1, 16 (Mo. banc 1992); Leisure v. State, 828 S.W.2d 872, 878 (Mo. banc 1992), cert. denied, U.S. , 113 S. Ct. 343 (1992). Defendant waives his right to proceed under Rule 24.035 if he fails to file a motion within the ninety day period. Johnson v. State , 818 S.W.2d 656, 657 (Mo. App. 1991). This time limitation is strictly enforced and makes no allowance for excuse. Smith v. State , 798 S.W.2d 152, 153 (Mo. banc 1990), cert. denied, ___ U.S. ___, 111 S. Ct. 2043 (1991). Furthermore, it is of no consequence that neither the trial court nor the State recognized the untimeliness of defendant's motion. Butler v. State , 841 S.W.2d 192, 193 (Mo. App. 1992). The state may raise this issue for the first time on appeal. State v. Smith, 849 S.W.2d 630, 631 (Mo. App. 1993).

In his reply brief, defendant raises two new points challenging the constitutionality of the filing limitations found in Rule 24.035. The constitutionality of Rule 24.035 has been upheld by the Missouri Supreme Court, which has stated that the rule serves the legitimate end of avoiding delay in the processing of prisoner claims. Johnson, 818 S.W.2d at 657. Missouri courts have specifically held that this rule does not violate a defendant's right to due process of law, Lestourgeon v. State , 837 S.W.2d 588, 591 (Mo. App. 1992); Johnson, 818 S.W.2d at 657, ... or operate as an unconstitutional suspension of the writ of habeas corpus. Johnson , 818 S.W.2d at 657. Thus, defendant's attempt to challenge the constitutionality of this rule must fail.

The State directs this court to several cases factually similar to the case at bar, which set forth the procedure to follow when the motion court has denied a Rule 24.035 motion on its merits, instead of dismissing the motion as time barred. The proper procedure is to vacate or set aside the judgment of the motion court and remand the case for dismissal. Smith, 798 S.W.2d at 154; Butler, 841 S.W.2d at 193.

Thus, the motion court's judgment denying the motion is vacated and the case is remanded for dismissal of the motion under Rule 24.035.

James M. Smart, ...


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