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Latham v. State

Court of Appeals of Missouri, Southern District, First Division

February 21, 2017

DAVID GLENN LATHAM, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.



          DON E. BURRELL, J.


         David Glenn Latham ("Movant") appeals the motion court's denial on the merits of a post-conviction claim raised for the first time in an untimely amended Rule 24.035 motion.[1] Because the time limits imposed by Rule 24.035 are mandatory, we affirm the motion court's denial of post-conviction relief based upon the unchallenged findings and conclusions related to the claims raised in Movant's original pro se motion, but we remand the matter and direct the motion court to enter an order dismissing Movant's time-barred amended motion and enter amended findings and conclusions that omit any reference to the untimely claim.

         Procedural History

         Movant pleaded guilty to the class-A felony of second-degree drug trafficking, see section 195.223, for possessing "6 grams or more of a mixture or substance containing a cocaine base, a controlled substance, knowing of its presence and nature." After initially suspending the execution of a fifteen-year sentence, the plea court later executed that sentence after finding that Movant had violated the terms of his probation. Movant was delivered to the Department of Corrections to begin serving his sentence on August 12, 2013.

         On November 20, 2013, Movant timely filed a pro se Rule 24.035 motion to vacate, set aside, or correct the judgment and sentence ("the first motion"). See Rule 24.035(b).[2] The motion court appointed the public defender's office to represent Movant on December 11, 2013. The transcript of Movant's guilty plea was filed on March 25, 2014, and Movant had sixty days from that date to file any amended Rule 24.035 motion. See Rule 24.035(g). On June 20, 2014, after the sixty-day deadline for filing an amended motion had passed, post-conviction counsel filed a statement "of his intention to not file an amended motion for post[-]conviction relief pursuant to Rule 24.035(e) ["statement in lieu".]" The statement in lieu averred that after having reviewed the pertinent documentation and interviewing Movant by telephone, post-conviction counsel had determined that there was "no additional legal or factual basis to amend [the] claims" set forth in the first motion.[3] On June 23, 2014, three days after the filing date of the statement in lieu, Movant filed a pro se amended Rule 24.035 motion ("the second motion").[4]

         The motion court held an evidentiary hearing on all of Movant's claims and subsequently entered a judgment denying "all relief sought[.]"

         In this appeal, Movant attempts to challenge the motion court's denial of post-conviction relief based solely on an allegation contained only in the second motion. That claim is that Movant's plea counsel "was ineffective for allowing [Movant] to plead guilty to the criminal offense of trafficking" because the State's evidence did not provide a factual basis for the charged offense. Specifically, Movant refers to a laboratory report he says proves that Movant possessed not "cocaine base[, ]" as charged in the felony information, but rather cocaine salt. We cannot reach the merits of that claim because the motion containing it was not timely filed and should have been dismissed for that reason by the motion court.

         Timeliness of the Second Motion

         As relevant here, an amended motion seeking post-conviction relief "shall be filed within sixty days of the earlier of . . . the date both a complete transcript consisting of the guilty plea and sentencing hearing has been filed in the trial court and counsel is appointed[.]" Rule 24.035(g) (emphasis added). Both prerequisites were met on March 25, 2014. Rule 24.035(g) also provides that "[t]he court may extend the time for filing the amended motion for one additional period not to exceed thirty days." (Emphasis added). However, Movant admits in his brief that no such extension was granted.[5] The second motion was therefore due no later than May 27, 2014, [6] and it was not filed until June 23, 2014 - several weeks after the deadline had passed. Therefore, the amended pro se motion was untimely. See Johnson v. State, 210 S.W.3d 427, 432 (Mo. App. S.D. 2006) (an amended pro se motion must be timely filed so as to vest the motion court with jurisdiction to adjudicate the additional claims); Oliver v. State, 196 S.W.3d 643, 645 (Mo. App. S.D. 2006) (same holding); Rutherford v. State, 192 S.W.3d 746, 748-49 (Mo. App. S.D. 2006) (same holding).

         Movant contends in the argument portion of his brief that the second motion "should be treated as timely" notwithstanding the explicit time limits of Rule 24.035(g) based on the following rationale: post-conviction counsel filed a statement in lieu of an amended motion pursuant to Rule 24.035(e); Rule 24.035(e) allows a movant to file a "reply" to a statement in lieu "not later than ten days after the statement is filed"; therefore, because post-conviction counsel filed a statement on June 20, 2014, and Movant filed the second motion on June 23, 2014 (within ten days of the filing of the statement in lieu), the second motion was timely. We disagree.

         The problem with Movant's argument is that it conflicts with the language of Rule 24.035(g). The time limits governing post-conviction relief motions are mandatory. Stanley v. State, 420 S.W.3d 532, 540 (Mo. banc 2014). As to amended motions, our high court has observed that "[a]rguments raised for the first time in a second amended motion filed after the time limit set out in Rule 24.035(g) are barred from consideration." Id. Movant cites no authority for the proposition that the provisions in Rule 24.035(e) act to enlarge the mandatory time limits for the filing of amended motions set forth in Rule 24.035(g), and we can find no such authority. Accordingly, we hold that the second motion was not timely filed.

         An untimely amended motion may be considered on its merits only if one of the ...

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