Court of Appeals of Missouri, Eastern District, First Division
WESLEY E. MARKS, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of the City of St. Louis Hon. Steven
G. Dowd, Jr., Judge.
Marks ("Movant") appeals from the judgment denying
his Rule 24.035 motion without an evidentiary hearing. We
remand for dismissal.
pled guilty to robbery in the first degree and armed criminal
action ("ACA") on April 23, 2014, after his jury
trial ended in a mistrial. He was sentenced to ten years
imprisonment on the robbery and to three years imprisonment
on the ACA, to be served concurrently. Execution of the
ten-year sentence was suspended, and Movant was placed on
five years of probation for the robbery conviction. The court
also ordered "[j]ail time credit allowed." On April
28, 2014, he was delivered to the Department of Corrections
("DOC") to serve the three-year sentence for the
ACA conviction. Movant was released in December of 2015, but
remained on probation for the robbery conviction. That
probation was revoked in April of 2016, and he was delivered
to the DOC on May 4, 2016 to begin serving his ten-year
sentence on the robbery. Movant did not file a direct appeal.
August 25, 2016, Movant filed a pro se motion seeking to
vacate both the robbery and the ACA convictions. Therein, he
stated that he was "trying to get my jail time and my
probation credit" for all the time he was "locked
up for either the ACA or the robbery" or on probation.
Counsel was appointed and filed an amended motion asserting
that plea counsel was ineffective for assuring Movant he
would receive credit for all the time he served on the ACA if
his probation on the robbery was ever revoked and the
ten-year sentence executed. Movant alleged that the DOC
refused to give him the credit for time served the sentencing
court had ordered. Movant alleged that had he known he would
not get that credit for the time he served in prison
on the ACA, then he would not have pled guilty. Movant sought
to have his entire sentence on both convictions vacated.
motion court found that the pro se and amended motions were
timely, but denied the claim without an evidentiary hearing,
concluding that Movant failed to allege facts which, if true,
would entitle him to relief and that the transcripts refuted
his allegations. On appeal, Movant asserts that the motion
court clearly erred because the record did not refute his
allegations of fact regarding his mistaken belief about
credit for time served, which he contends is a cognizable
Rule 24. 035 claim. The State agrees the motion court erred,
but only as to its finding that the pro se and amended
motions were timely filed.
State correctly argues, Movant's Rule 24.035 motion was
due within 180 days of his initial delivery to the DOC to
serve part of his sentence (the three-year term on the ACA),
not 180 days from his second delivery to serve another part
of his sentence (the ten-year term on the robbery after
probation was revoked). Swallow v. State, 398 S.W.3d
1, 4-6 (Mo. banc 2013); see also Rule 24.035(b)
(2016). In Swallow, the Court held that
at the time of the initial delivery to the DOC on one of
multiple convictions and sentences in the same judgment, Rule
24.035 requires a movant "to file a motion within 180
days that raise[s] all of his known challenges to the
judgment against him, which encompassed both convictions and
both sentences that were imposed, whether executed or not.
398 S.W.3d at 5.
no motion was filed within 180 days of Movant's initial
delivery. "Failure to file a motion within the time
provided by this Rule 24.035 shall constitute a complete
waiver of any right to proceed under this Rule 24.035 and a
complete waiver of any claim that could be raised in a motion
filed pursuant to this Rule 24.035." Rule 24.035(b).
Because of this procedural default, relief via Rule 24.035 is
unavailable to Movant.
motion court erred in finding that Movant's pro se and
amended motions were timely filed. Because the pro se motion
was untimely, "the motion court lacked the authority to
address the merits" of the claim. Langhans v.
State, 501 S.W.3d 535, 540 (Mo. App. E.D. 2016). The
motion court is obligated under these circumstances to
dismiss the amended motion. See id.
motion court's judgment denying the Rule 24.035 motion is
vacated, and the case is remanded with directions to dismiss
M Clayton III, P.J., and Roy L. Richter, J., concur.
 We note that a claim seeking credit
for time served, which is how the claim was cast in
Movant's pro se motion, is not cognizable under Rule
24.035. See States v. State, 413 S.W.3d 704, 706-07
(Mo. App. E.D. 2013). But as recast by counsel in the amended
motion, Movant's claim that he would not have pled guilty
but for plea counsel's mistaken assurance about ...