Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of St. Francois County 14SF-CC00210
Honorable Wendy Wexler Horn
Lisa P. Page, Judge.
Propst ("Movant") appeals the dismissal of his Rule
24.035 motion for post-conviction relief. We reverse and
remand with instructions.
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
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probation was revoked and his five-year-sentence was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
April 30, 2014, Movant was delivered to the custody of the
Missouri Department of Corrections ("DOC") and was
incarcerated in Camden.
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 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.  Prior to this meeting, Movant was
purportedly unaware of any claims he could assert in a motion
for post-conviction relief.
executed the completed Form 40 provided to him by District
Defender,  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
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.
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
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)
review of the motion court's denial 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 ...