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Propst v. State

Court of Appeals of Missouri, Eastern District, First Division

September 20, 2016

JAKIB PROPST, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of St. Francois County 14SF-CC00210 Honorable Wendy Wexler Horn

Lisa P. Page, Judge.

         Jakib Propst ("Movant") appeals the dismissal of his Rule 24.035 motion for post-conviction relief. We reverse and remand with instructions.

         BACKGROUND

         On January 17, 2014, Movant appeared before the plea court in St. Francois County and pled guilty to one count of burglary in the second degree, in violation of Section 559.170. Movant was sentenced to five years' imprisonment, but execution of Movant's sentence was suspended and Movant was placed on five years of supervised probation. We note Movant's guilty plea was procured via a "group plea."[1]

         Just over three months later, on April 25, 2014, Movant's probation was revoked and his five-year-sentence was executed, occasioned by Movant's self-confessed violation of the travel condition imposed by his supervised probation. At Movant's probation revocation hearing, the trial court informed Movant of his right to file a post-conviction relief motion, pursuant to Rule 24.035, and the corresponding time parameters.

         On April 30, 2014, Movant was delivered to the custody of the Missouri Department of Corrections ("DOC") and was incarcerated in Camden.

         On October 27, 2014, 180 days after Movant's execution of sentence, Movant met with an attorney ("District Defender") employed by the Missouri State Public Defender System ("MSPDS"), and stationed in MSPDS's Farmington Office. During that meeting District Defender provided legal advice and counsel to Movant, advised Movant of his claims for post-conviction relief, and delivered a completed Form 40[2] to Movant for execution. Movant's Form 40 alleged, inter alia, that he did not "consent" to the revocation of his probation. Rather, Movant claimed he was eligible for sanction under the Court Ordered Detention Sanction ("CODS") program and should, therefore, be released from prison. [3] Prior to this meeting, Movant was purportedly unaware of any claims he could assert in a motion for post-conviction relief.

         Movant executed the completed Form 40 provided to him by District Defender, [4] and District Defender informed Movant that he would file said Form 40 on Movant's behalf. Operating under the false premise Movant's pro se post-conviction relief motion was not due until October 28, 2014, District Defender elected not to fax the Form 40 to the courthouse, but, rather, filed the Form 40 the following day. At no time since Movant's execution of sentence was District Defender or any other employee of the MSPDS appointed by a court or under duty to legally represent Movant; District Defender and the MSPDS voluntarily undertook the above-actions.

         Shortly after the filing of Movant's Form 40, an attorney under the employ of MSPDS ("Post-Conviction Counsel") was appointed to represent Movant. Post-Conviction Counsel requested the motion court permit Movant to proceed with his Rule 24.035 post-conviction motion notwithstanding Movant's untimely filing of his pro se motion.

         After a hearing upon the timeliness and cause of delay regarding Movant's pro se motion for post-conviction relief, the trial court dismissed Movant's Rule 24.035 motion.

         This appeal follows.

         DISCUSSION

         In his sole point on appeal, Movant avers the motion court erred in dismissing his Rule 24.035 post-conviction relief motion, in that the untimeliness of Movant's pro se post-conviction relief motion was caused by the active interference of a third-party, beyond Movant's control. Moreover, Movant contends the trial court erred in relying upon and applying Price v. State, 422 S.W.3d 292 (Mo. banc 2014), rather than McFadden v. State, 256 S.W.3d 103 (Mo. banc 2008)

         Standard of Review

         Appellate review of the motion court's denial[5] of a Rule 24.035 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Pettry v. State, 345 S.W.3d 335, 337 (Mo. App. E.D. 2011); see also Rule 24.035(k). The motion court's findings and conclusions will be deemed clearly erroneous only if a review of the entire record leaves this court with a "definite and firm ...


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