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10/20/93 TEDDY D. MATTHEWS v. STATE MISSOURI

October 20, 1993

TEDDY D. MATTHEWS, APPELLANT,
v.
STATE OF MISSOURI, RESPONDENT.



APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY. Honorable James A. Franklin, Jr., Judge

Montgomery, Parrish, Shrum

The opinion of the court was delivered by: Montgomery

Movant appeals from the denial, without an evidentiary hearing, of his Rule 24.035 motion for post-conviction relief. We affirm.

In the underlying criminal case, movant was charged with sexual abuse in the first degree. § 566.100, RSMo Supp. 1991. On January 21, 1992, he entered a plea of guilty without the benefit of a plea agreement.

On April 27, 1992, movant was sentenced to a term of five years' imprisonment. The judgment entered that day further stated the following: "Court orders report pursuant to Section 559.115 RSMo *fn1 to be filed to consider shock detention."

On September 16, 1992, movant filed a motion entitled "Notice of Filing Direct Appeal & 24.035." In this motion, movant alleged that his judgment and sentence were improper, illegal, and unconstitutional and requested that his conviction and sentence be vacated, set aside, or corrected. Movant further requested a copy of his guilty plea transcript and case file in order to provide the court with each and every ground upon which he was seeking relief. Finally, movant requested the appointment of counsel to assist him in the preparation of his case.

On October 5, 1992, the motion court denied movant's motion and entered findings of fact and Conclusions of law as required by Rule 24.035(i). The court found, inter alia, that after his guilty plea movant was delivered to the department of corrections on April 27, 1992, and that his motion was not filed until September 16, 1992. *fn2 The court concluded that movant's motion was untimely filed under Rule 24.035 and, as a result, movant had waived his right to proceed under the rule.

Movant's single point on appeal attacks the dismissal of his motion, alleging that the time limits in Rule 24.035 operate to deny his due process rights, especially when the trial court had retained jurisdiction under § 559.115. Movant asserts that he withheld filing his motion for post-conviction relief fearing that such action would alienate "the Judge who would then not grant probation."

Our review is limited to making a determination of whether the motion court's findings and Conclusions are clearly erroneous. Rule 24.035(j); Edmonds v. State, 819 S.W.2d 90, 91 (Mo.App. 1991). The motion court's findings and Conclusions are clearly erroneous only if a review of the entire record leaves this Court with a definite and firm impression that a mistake has been made. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

Rule 24.035(b) provides that a motion under this rule "shall be filed within ninety days after the movant is delivered to the custody of the department of corrections." The time limitation in this rule is valid, mandatory, reasonable, and serves the legitimate end of avoiding delay in the processing of prisoners' claims. Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), cert. denied, 493 U.S. 866, 107 L. Ed. 2d 141, 110 S. Ct. 186 (1989). Failure to file a timely motion procedurally bars a movant from seeking relief under the rule. Thomas v. State, 808 S.W.2d 364, 365 (Mo. banc 1991). Furthermore, the time limitation in Rule 24.035(b) does not violate a movant's right to due process. Johnson v. State, 818 S.W.2d 656, 657 (Mo.App. 1991).

Movant does not dispute that he was delivered to the department of corrections on April 27, 1992; nor does he claim that his motion was filed earlier than August 31, 1992. Clearly, movant's motion was untimely filed, and the motion court committed no error in so finding.

Despite the untimeliness of his motion, movant suggests that the time limits of the rule should be "tempered" in this case since the trial court was considering him for "shock probation." Movant argues that he was "placed in the quandary" of either not timely filing a Rule 24.035 motion, hoping for probation after 120 days, or filing such motion and risk alienating the Judge which would "doom" his opportunity for probation.

Movant overlooks that we are constitutionally controlled by decisions of the Missouri Supreme Court. Mo. Const. art. V, § 2; Lestourgeon v. State, 837 S.W.2d 588, 591 (Mo.App. 1992). Both Day and Thomas require that we hold steadfast to the time limitation contained in Rule 24.035(b).

Movant's point also alleges that the motion court erroneously failed to appoint counsel for him as required by Rule 24.035(e). Movant's failure to file a timely motion constitutes a complete waiver of his right to proceed under the rule. Rule 24.035(b); Johnson, 818 S.W.2d at 657. The motion court is only required to make findings of fact and Conclusions of law sufficient to support the dismissal of an untimely motion. ...


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