Court of Appeals of Missouri, Southern District, Second Division
VIVIAN R. HALL, Appellant,
STATE OF MISSOURI, Respondent.
FROM THE CIRCUIT COURT OF BARTON COUNTY, Honorable James R.
Bickel, Presiding Judge
JUDGMENT VACATED, CASE REMANDED WITH
WILLIAM W. FRANCIS, JR., J.
R. Hall ("Hall") appeals the denial of her amended
Rule 24.035 motion for post-conviction
relief following an evidentiary hearing. We vacate the
judgment and remand the cause with directions to dismiss the
motion because Hall failed to prove that she timely filed her
pro se motion as required by Rule 24.035, and thus
has waived the claim she now asserts on appeal.
entered an Alford plea on August 6, 2012, to the charge of
the class C felony of driving while intoxicated, pursuant to
section 577.010. The record before
us indicates that Hall was sentenced on November 5, 2012, to
seven years' imprisonment in the Department of
Corrections, and was ordered to participate in a "Long
Term Drug Treatment Program." Hall was ordered to be
delivered to the Department of Corrections on the same day.
filed a pro se "Motion to Vacate, Set Aside or
Correct the Judgment or Sentence" on June 19, 2013.
However, according to the record before us, and the limited
means we have to calculate a due date, her motion was due 180
days after she was delivered to the
Department of Corrections-that is, by May 6,
that Hall alleges in both her original and amended motions
that she was delivered to the Department of Corrections on
March 5, 2013. However:
In a motion filed pursuant to Rule 29.15, . . . [t]he movant
. . . must allege facts establishing that the motion is
timely filed. The movant then must prove his allegations.
Rule 29.15(i); Rule 24.035(i) ("The movant has the
burden of proving the movant's claims for relief by a
preponderance of the evidence."). In addition to proving
his substantive claims, the movant must show he filed his
motion within the time limits provided in the Rules.
Dorris v. State, 360 S.W.3d 260, 267 (Mo. banc
the record, which includes the transcript of the motion
court's hearing, is devoid of evidence that Hall was
delivered to the Department of Corrections, as she alleges,
on March 5, 2013. The only evidence in the record, aside from
Hall's bare pleaded assertions, points to Hall being
delivered to the Department of Corrections on November 5,
2012. We cannot look beyond the record on appeal submitted to
us by the parties in making this determination. Rules 81.12
and 84.04(h). See In re Adoption of C.M.B.R., 332
S.W.3d 793, 823 (Mo. banc 2011) ("this Court will not
consider documents and testimony outside the record on
appeal."). It was Hall's burden to prove, as well as
plead, that her motion was timely filed. Dorris, 360
S.W.3d at 267. Hall failed to meet this burden.
24.035(b) dictates that "[f]ailure to file a motion
within the time provided by this Rule 24.035 shall constitute
a complete waiver of any right to proceed under this Rule
24.035 and a complete waiver of any claim that could be
raised in a motion filed pursuant to this Rule
24.035(b)." "It is the court's duty to enforce
the mandatory time limits and the resulting complete waiver
in the post-conviction rules-even if the State does not raise
the issue." Dorris, 360 S.W.3d at 268. In order
to enforce the requirements of this court rule, which cannot
be waived by the parties, we must remand this cause to the
motion court with directions to dismiss Hall's motion.
Id. at 270.
motion court's judgment is vacated, and the cause is
remanded with directions for the motion court to dismiss
Hall's pro se Rule 24.035 motion as untimely.
W. LYNCH, P.J., DANIEL E. SCOTT, J. CONCURS