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Politte v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

March 14, 2017

NATHAN POLITTE, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Jefferson County Honorable Troy A. Cardona

          KURT S. ODENWALD, Judge.

         Introduction

         Nathan Politte ("Politte") appeals the judgment of the motion court denying his amended Rule 24.035[1] motion for post-conviction relief on the merits. Lacking a sufficient record to determine the timeliness of Politte's amended motion, we reverse and remand.

         Factual and Procedural History

         The 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 other two.

         Acting 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.[2] 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.

         Politte's 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.

         Discussion

         Politte's 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.

         Here, 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 24.035(g).

         The 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.

         Our 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 findings.

         Our 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 ...


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