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Bearden v. State

Supreme Court of Missouri, En Banc

October 31, 2017

TODD BEARDEN, Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF ST. FRANCOIS COUNTY The Honorable Sandy Martinez, Judge

          Zel M. Fischer, Chief Justice.

         Todd Bearden appeals a judgment overruling his amended Rule 24.035 motion for post-conviction relief without an evidentiary hearing.[1] Bearden's amended motion was untimely, but the motion court did not conduct an abandonment inquiry. Consequently, the judgment is reversed, and the case is remanded.

         Factual and Procedural Background

         The state charged Bearden with two counts of the class C felony of possession of a chemical with the intent to create a controlled substance in violation of § 195.420, RSMo Supp. 2010.[2] Bearden pleaded guilty to both charges. The circuit court sentenced Bearden to consecutive seven-year sentences, suspended execution of the sentences, and placed him on probation for five years. Bearden did not appeal.

         In April 2015, the circuit court held a probation revocation hearing, revoked Bearden's probation, and executed his sentences. Bearden was delivered to the department of corrections.

         Bearden timely filed a pro se Rule 24.035 motion for post-conviction relief. The motion court appointed the public defender to represent Bearden. On December 18, 2015, appointed counsel filed a transcript of the guilty plea, sentencing, and probation violation admissions. On December 29, 2015, appointed counsel filed a transcript of Bearden's probation revocation hearing. The motion court granted Bearden a 30-day extension of time. Bearden filed his amended motion March 30, 2016. The motion court denied relief without an evidentiary hearing.[3] Bearden appeals.

         Abandonment

         Rule 24.035(g) filing deadlines are mandatory. Stanley v. State, 420 S.W.3d 532, 540 (Mo. banc 2014). Both circuit and appellate courts "have a 'duty to enforce the mandatory time limits . . . even if the state does not raise the issue.'" Price v. State, 422 S.W.3d 292, 297 (Mo. banc 2014). Accordingly, this Court will not consider the merits of a motion for post-conviction relief without first determining whether the motion was timely filed. Gittemeier v. State, No. SC95953, 2017 WL 4002011, at *1 (Mo. banc Sept. 12, 2017). When appointed counsel fails to file a timely amended motion, this Court will remand the case to the motion court to determine whether appointed counsel abandoned the post-conviction movant. Moore v. State, 458 S.W.3d 822, 825-26 (Mo. banc 2015).[4]

         The Amended Motion Was Untimely

         Rule 24.035(g) provides:

If no appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of: (1) 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 or (2) the date both a complete transcript has been filed in the trial court and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.

         Rule 24.035(g) defines a "complete transcript" as "consisting of" the transcript of the "guilty plea and sentencing hearing." The "complete transcript" does not include a transcript of the probation revocation hearing. Accordingly, the 60-day filing period began December 18, 2015, when appointed counsel filed a transcript of the guilty plea and sentencing hearing. Given the 30-day extension granted by the motion court, Bearden's amended motion was due March 17, 2016. Bearden's amended motion was filed out of time on March 30, 2016.

         Contrary to the plain language of Rule 24.035(g), Bearden asserts the transcript was not "complete" until December 29, 2015, when appointed counsel filed a transcript of the probation revocation hearing. Bearden's argument is premised on the incorrect assumption ...


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