Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of Jefferson County Honorable Troy A.
S. ODENWALD, Judge.
Politte ("Politte") appeals the judgment of the
motion court denying his amended Rule 24.035 motion for post-conviction relief on the
merits. Lacking a sufficient record to determine the
timeliness of Politte's amended motion, we reverse and
and Procedural History
State charged Politte with three counts of first-degree
statutory sodomy. Under a plea agreement, Politte pleaded
guilty to one of those counts, and the State dismissed the
pro se, Politte timely filed a Rule 24.035 motion for
post-conviction relief. The motion court appointed
post-conviction counsel on April 1, 2015. A few weeks later, the motion court
granted a 30-day extension for appointed counsel to file an
amended motion. Appointed counsel filed the amended motion on
September 2. Our record is unclear when the transcript of the
plea and sentencing hearing was filed.
amended motion alleged two claims for ineffective assistance
of counsel. The motion court denied both claims on the merits
without an evidentiary hearing. Politte appeals.
points on appeal insist that he was entitled to an
evidentiary hearing because the record did not conclusively
refute his ineffective-assistance claims. However, we must
determine the timeliness of Politte's amended motion
before reaching the merits. Craigg v. State,
ED103971, 2017 WL 676788, at *2 (Mo. App. E.D. Feb. 21,
2017); Austin v. State, 484 S.W.3d 830, 832 (Mo.
App. E.D. 2016); see also Moore v. State, 458 S.W.3d
822, 825 (Mo. banc 2015). Rule 24.035(g) outlines the
relevant time limits for an amended motion after a guilty
plea. If no appeal is taken, the amended motion shall be
filed within 60 days of the earlier of the date both (1)
"a complete transcript consisting of the guilty plea and
sentencing hearing has been filed in the trial court"
and (2) counsel is appointed (or an entry of appearance is
filed by counsel not appointed). Rule 24.035(g). Further, the
motion court may extend the deadline once, for no more than
30 days. Id.
the motion court granted Politte's appointed counsel a
30-day extension to file an amended motion. Thus, the amended
motion was due 90 days after both (1) the transcript was
filed and (2) counsel was appointed. See Rule
motion court appointed post-conviction counsel on April 1. If
the 90-day period started on the day counsel was appointed,
the amended motion was due on June 30. But post-conviction
counsel did not file the amended motion until September 2.
Hence, for the amended motion to be timely, the
transcript-filing date must control. For an amended motion
filed on September 2 to be timely, the transcript must have
been filed on or after June 4-i.e. a transcript filed on June
4 would make the amended motion due 90 days later, on
September 2; a transcript filed on June 5 would make the
amended motion due on September 3; and so on.
record does not clearly establish the transcript-filing date.
No docket entry specifically states when the transcript was
filed. Further, the motion court made no relevant factual
record contains a scanned version of the transcript, which
shows the first page date-stamped as "FILED" on May
15. The date stamp also includes "MICHAEL E. REUTER,
CIRCUIT CLERK." Our record confirms that Mr. Reuter is
in fact the circuit clerk for Jefferson County, the county in
which Politte filed this post-conviction motion. If the
transcript was filed on May 15 as the date stamp indicates,
the amended motion would have been due 90 ...