Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Louis County Cause No.
14SL-CC04433 Honorable Michael D. Burton
Colleen Dolan, Judge
Greenleaf ("Movant") appeals the motion court's
judgment denying his Rule 24.035 motion for
post-conviction relief without an evidentiary hearing.
Movant's motion was untimely filed. Accordingly, we
vacate the motion court's judgment and remand the cause
with directions to dismiss Movant's motion because it is
Factual and Procedural Background
March 31, 2014, in case number 14SL-CR02812, a grand jury
charged Movant with one count of attempted enticement of a
child. On June 19, 2014, Movant pled guilty in
14SL-CR02812, and the plea court sentenced him to five
years' imprisonment. At the time of the plea and
sentencing, Movant was already incarcerated and serving a
12-year term of imprisonment after pleading guilty in a
different case on May 5, 2014 to six counts of possession of
began serving his sentence on June 19, 2014, when he was
delivered to the Missouri Department of
Corrections. He completed and mailed a pro se Rule
24.035 motion on December 23, 2014. The pro se motion was
received by a clerk and filed on December 29, 2014.
Standard of Review
only overrule a motion court's denial of a Rule 24.035
motion if the court's finding of fact and conclusions of
law are clearly erroneous. Rule 24.035(k); Stanley v.
State, 420 S.W.3d 532, 539 (Mo. banc 2014). "The
motion court's findings and conclusions are clearly
erroneous only if, after review of the record, the appellate
court is left with the definite and firm impression that a
mistake has been made." Stanley, 420 S.W.3d at
539. Movant bears the burden of showing, by a preponderance
of the evidence, that the motion court's ruling was
clearly erroneous. Id.
Rule 24.035 motion was untimely filed. However, because the
motion court denied the claim on its merits instead of
dismissing it, we must vacate the motion court's judgment
and remand the cause to the motion court with directions to
dismiss Movant's Rule 24.035 motion.
defendant does not make a direct appeal of the judgment
sought to be vacated, his pro se motion "shall be filed
within 180 days of the date the person is delivered to the
custody of the department of corrections." Rule
24.035(b) (emphasis added); see also Wright v. State, 464
S.W.3d 526, 528 (Mo. App. E.D. 2015). (emphasis added). Time
limits for post-conviction relief motions are mandatory.
Stanley, 420 S.W.3d at 540; see also Dorris v.
State, 360 S.W.3d 260, 266-67 (Mo. banc 2012)
(explaining that the word "shall" generally
connotes a mandatory duty, and mandatory duties prescribed by
rules or statutes "must be obeyed."). A
movant's failure to file a Rule 24.035 motion within 180
days of the date he is delivered to the custody of the
Department of Corrections results in the movant's
complete waiver of his right to proceed on that
motion. Dorris, 360 S.W.3d at 266-67. A
"complete waiver" means "a total, absolute
relinquishment of a legal right." Id. at
never made a direct appeal of his conviction. Accordingly,
Movant was required to file a pro se motion within 180 days
from the date he was delivered to the Missouri Department of
Corrections (June 19, 2014), making his deadline date to file
his motion December 16, 2014. See Rule 24.035(b).
Movant contends that the motion court's ruling contained
an error and Movant was not actually delivered into the
Department of Corrections until June 25, 2014, which would
extend his deadline date to December 22, 2014. Whether Movant
was delivered into custody on June 19, 2014 or June 25, 2014
is immaterial. Movant's pro se motion was not filed until
December 29, 2014, thus, it would be considered untimely in
required to enforce the mandatory court rules created by the
Supreme Court of Missouri. Dorris, 360 S.W.3d at
268. Our Court cannot waive Movant's non-compliance with
the time limits imposed by Rule 24.035. Id. However,
the Supreme Court of Missouri has also crafted three
exceptions to Rule 24.035(b): "(1) when the motion was
delivered to the court so it would be filed within the time
limits of the Rules but the court lost or misfiled the
motion; (2) when post-conviction counsel abandoned the
movant, i.e. 'improperly act[ed] or fail[ed] to act to
the movant's detriment'; and (3) 'in very rare
circumstances' where 'an improper filing, caused by
circumstances beyond the control of the movant, justified a
late receipt of the motion by the proper court.'"
Wiley v. State, 368 S.W.3d 236, 238 (Mo. App. E.D.
2012). (quoting Moore v. State, 328 S.W.3d 700,
702-03 (Mo. banc 2010)) (citing Dorris, 360 S.W.3d
Movant does not argue that any of the three exceptions are
applicable. Rather, he requests our leniency because the
motion would only be seven days late, if Movant was not
delivered to the Department of Corrections until June 25,
2014. We do not have discretion on this matter,
however. Because Movant failed to file his Rule 24.035 motion
within 180 days of the date he was taken into ...