Court of Appeals of Missouri, Eastern District, Fourth Division
DIONNE L. GATLING, JR., Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of St. Charles County Cause No.
1711-CC00001 Honorable Deborah J. Alessi
M. GAERTNER, JR., JUDGE.
L. Gatling, Jr. (Movant) appeals the judgment denying his
Rule 24.035 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.
27, 2015, Movant pled guilty to stealing a motor vehicle in
violation of Section 570.030. The trial court sentenced Movant
to seven years imprisonment, suspended execution of sentence,
and placed Movant on probation for five years.
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
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
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.
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.
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.
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]."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)).
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 ...