Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of Perry County Cause No.
17PR-CC00041, Honorable Benjamin F. Lewis.
M. Gaertner, Jr., Judge.
Wenzel (Movant) appeals from the judgment denying his Rule
24.035motion for post-conviction relief without
an evidentiary hearing. We vacate the judgment with
directions to dismiss the Rule 24.035 motion because
Movant's pro se motion was untimely.
December 12, 2014 Movant pleaded guilty to delivering or
concealing a prohibited article on the premises of a county
jail, a class B felony and driving while revoked, a class D
felony. The court sentenced Movant to concurrent terms of
seven years imprisonment for the class B felony and four
years imprisonment for the class D felony, pursuant to the
120-day institutional training program under Section 559.115
RSMo. Cum. Supp. (2014). The court also ordered this sentence
be served consecutively to a seven-year sentence from a
April 7, 2015 Movant completed the institutional treatment
program. The court placed Movant on probation for five years.
13, 2016 and October 7, 2016, the court found that Movant
violated his probation. In both instances, the court
continued Movant's probation with additional conditions.
On October 7, 2016 Movant also pleaded guilty to possession
of a controlled substance. On June 2, 2017 the court again
found that Movant violated his probation. The court executed
Movant's sentences which included the 2014 seven-year
sentence for the prohibited article and four-year sentence
for driving while revoked.
August 17, 2017 Movant filed a pro se Rule 24.035 motion.
Movant asserted that he was challenging his seven-year
sentence for the 2014 prohibited article conviction. Movant
alleged that for this conviction he was delivered to the
Department of Corrections on June 20, 2017.
through appointed counsel filed an amended Rule 24.035
motion. In his sole claim, Movant alleged that he was
improperly charged and convicted of a class B felony for the
prohibited article. Movant asserted that the proper charge
was a class A misdemeanor and not a class B felony.
motion court denied Movant's amended motion without an
evidentiary hearing. This appeal follows.
time restrictions set forth in Rule 24.035 motion are
"mandatory, strictly enforced, and may not be
extended." Miley v. State, 559 S.W.3d 97, 99
(Mo. App. E.D. 2018). A movant's failure to timely file a
pro se Rule 24.035 motion constitutes a complete waiver of
the movant's right to proceed with the post-conviction
motion. Rule 24.035(b); Dorris v. State, 360 S.W.3d
260, 266 (Mo. banc 2012).
24.035(b) provided if no appeal of the "judgment was
taken, the motion shall be filed within 180 days of the date
the person is delivered to the custody of the [D]epartment of
[C]orrections." The law is well settled that the time
limitations for filing a motion for post-conviction relief
starts upon a movant's initial delivery to the custody of
the Department of Corrections. Hall v. State, 380
S.W.3d 583, 585 (Mo. App. E.D. 2012). This applies even in
cases where pursuant to Section 559.115 the trial court
remands the movant to the Department of Corrections so the
movant can enter an institutional treatment program and then
places the movant on probation upon completion of the
program. Id. "The delivery of the movant into
the custody of the Missouri Department of Corrections for a