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Gatling v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

October 29, 2019

DIONNE L. GATLING, JR., Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of St. Charles County Cause No. 1711-CC00001 Honorable Deborah J. Alessi

          GARY M. GAERTNER, JR., JUDGE.

         Introduction

         Dionne L. Gatling, Jr. (Movant) appeals the judgment denying his Rule 24.035[1] motion 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.

         Background

         On May 27, 2015, Movant pled guilty to stealing a motor vehicle in violation of Section 570.030.[2] The trial court sentenced Movant to seven years imprisonment, suspended execution of sentence, and placed Movant on probation for five years.

         The Board of Probation and Parole subsequently filed several reports stating that Movant was violating his probation. On February 18, 2016, the trial court continued Movant's probation but ordered Movant to participate in a Court Ordered Detention Sanction (CODS) 120-day program pursuant to Section 559.036.

         On April 13, 2016, the Board of Probation and Parole prepared a "COURT REPORT INVESTIGATION" (Court Report) regarding Movant's participation in the CODS program. The Court Report lists Movant's disciplinary violations. The first violation listed occurred on March 8, 2016 at the Fulton Reception and Diagnostic Center (FRDC), a Missouri Department of Corrections (DOC) facility. Thus, Movant was delivered to the DOC on or before March 8, 2016. The Court Report further states that between March 10, 2016 and April 7, 2016 Movant had four additional disciplinary violations that occurred at FRDC and Cremer Therapeutic Community Center. Because of Movant's behavior he was removed from the program.

         On July 28, 2016, the trial court revoked Movant's probation and executed the previously imposed sentence of seven years imprisonment. On December 29, 2016, Movant filed a pro se Rule 24.035 motion. Movant alleged he was delivered to the DOC on August 4, 2016. Movant through appointed counsel filed an amended Rule 24.035 motion. In his sole claim, Movant alleged that based on the holding in State v. Bazell. 497 S.W.3d 263 (Mo. banc 2016) his stealing conviction should have been classified as a class A misdemeanor, not enhanced to a class C felony, and that his maximum sentence should be one year.

         The motion court addressed the merits of Movant's claim and found that Bazell did not apply. The motion court denied Movant's amended motion without an evidentiary hearing. This appeal follows.

         Discussion

         The time restrictions set forth in Rule 24.035 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); id.

         Rule 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 [DOC]."[3]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 DOC. Hall v. State, 380 S.W.3d 583, 585 (Mo. App. E.D. 2012). Further, the 180-day limitation begins to run when a movant is first delivered to the DOC to complete the 120-day CODS program. Bergner v. State, 568 S.W.3d 547, 550 (Mo. App. E.D. 2019); Miley, 559 S.W.3d at 99. "[A] movant's initial delivery to the DOC-even if just to complete a 120-day program pursuant to [Section] 559.036-trigger[s] the 180-day period to file a Rule 24.035 motion." Miley, 559 S.W, 3d at 99 (interpreting Mo. R. Crim. P. (2017)).

         Based on the Court Report, Movant was delivered to the DOC on or before March 8, 2016. Movant's filing of his pro se Rule 24.035 motion at least ...


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