FROM THE CIRCUIT COURT OF ST. FRANCOIS COUNTY The Honorable
Wendy Wexler Horn, Judge
R. Russell, Judge.
Propst appeals the dismissal of his Rule 24.035 motion. While
he was incarcerated, a public defender became aware of his
case and believed he had a viable claim for post-conviction
relief. The public defender prepared a motion for Propst to
sign, obtained his signature, and told Propst he would file
the motion. The public defender, however, miscalculated the
deadline, and he filed the motion one day late. It was
dismissed as untimely. Propst argues a narrow exception
applies to allow the late filing of pro se motions
for post-conviction relief because counsel actively
interfered with the filing of the motion. Because Propst did
not prepare the motion himself or do anything further to
ensure the motion was filed on time, this Court holds that
the third- party interference exception does not apply.
Accordingly, the motion court's judgment dismissing his
motion as untimely is affirmed.
Propst was charged with one count of second-degree burglary.
Pursuant to a plea agreement, the trial court sentenced
Propst to five years' imprisonment, suspended execution
of his sentence, and placed him on probation. After the state
alleged Propst violated conditions of his probation, the
trial court conducted a probation revocation hearing. Propst
admitted violating his probation conditions. The trial court
revoked Propst's probation and executed his sentence.
trial court additionally advised Propst of his right to seek
post-conviction relief pursuant to Rule 24.035 and the need
to file his motion within 180 days from the date of his
delivery to the department of corrections. He was delivered
to the department of corrections on April 30, 2014, and,
pursuant to Rule 24.035, had until October 27, 2014, to file
his motion for post-conviction relief.
to the October 27 deadline, a public defender in the
Farmington office became aware of Propst's case and
believed Propst had a viable claim that his trial counsel was
ineffective. The public defender scheduled an
appointment to meet with Propst at the correctional center on
October 27 - the last day Propst could file his motion
for post-conviction relief pursuant to Rule 24.035.
Prior to this meeting, Propst was unaware of any claim under
which he could seek relief.
public defender advised Propst he had prepared a Form 40 for
Propst to signand a public defender in the appellate
division would be appointed to represent him once his initial
motion was filed. After Propst signed the Form 40 at the
public defender's request, the public defender stated he
would file it on Propst's behalf.
public defender testified that, because he believed
Propst's deadline to file his motion was October 28, he
filed the motion on that day. The motion court dismissed
Propst's Rule 24.035 pro se motion as untimely,
applying this Court's holding in Price v. State,
422 S.W.3d 292 (Mo. banc 2014). Propst appeals.
review of a motion court's dismissal of a post-conviction
relief motion is limited to determining whether the findings
and conclusions of law are clearly erroneous. Id. at
294. A motion court's findings and conclusions are
clearly erroneous if this Court "is left with the
definite and firm impression that a mistake has been
made" after a review of the entire record. Id.
argues the motion court erred in dismissing his
post-conviction relief motion as untimely because it was no
fault of his own but, rather, the result of active
interference by a third party - the public defender who
assumed the duty of filing the pro se motion.
Because of this alleged interference, Propst contends the
motion court should not have dismissed his motion to proceed
24.035(a) provides that, absent appeal, a person claiming his
or her conviction or sentence imposed after a guilty plea
violates the constitution and laws of the United States or
Missouri, including claims of ineffective assistance of
counsel, may file a motion to vacate, set aside, or correct
the trial court's judgment or sentence. Such a motion
must be filed within 180 days of the person being delivered
to the custody of the department of corrections. Rule
24.035(b). "Failure to file a motion within the time
provided by this Rule 24.035 shall constitute a complete