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Kirk v. State

Court of Appeals of Missouri, Western District, Second Division

December 17, 2019

JULIE MAE KIRK, Appellant,
v.
STATE OF MISSOURI, Respondent.

          APPEAL FROM THE CIRCUIT COURT OF LAFAYETTE COUNTY, MISSOURI THE HONORABLE DENNIS A. ROLF, JUDGE.

          Before: Thomas H. Newton, Presiding Judge, Anthony Rex Gabbert, Judge, and Tom N. Chapman, Judge.

          ANTHONY REX GABBERT, JUDGE.

         Julie Kirk appeals from the judgment of the circuit court which dismissed her pro se Rule 24.035 motion for postconviction relief as untimely filed. We reverse.

         Background

         In May 2017, Kirk pleaded guilty to the class C felony of possession of a controlled substance, two counts of the class C felony of first-degree endangering the welfare of a child, and the class A misdemeanor of unlawful use of drug paraphernalia. The trial court found Kirk to be a prior drug offender and a prior and persistent offender and sentenced her to seven years' imprisonment on each of the felonies and 90 days in jail on the misdemeanor, with the sentences ordered to run concurrently.

         Kirk was delivered to the custody of the Department of Corrections (DOC) on June 22, 2017. Under the version of Rule 24.035(b) which became effective on July 1, 2017, Kirk's postconviction relief motion was due within 180 days of the date she was delivered to the DOC's custody, or by December 19, 2017. The rule specified that a motion sent to the court by United States mail would be deemed filed as of the date the motion was "deposited in the mail."

         The circuit clerk stamped Kirk's pro se Rule 24.035 motion as received on December 21, 2017 - two days after the deadline. The circuit court appointed counsel to represent Kirk. Before counsel could file an amended postconviction relief motion, the State filed a motion to dismiss on the basis that Kirk's pro se motion was untimely.

         The circuit court held an evidentiary hearing on the State's motion to dismiss on March 19, 2018. At the outset, the State argued to the circuit court that Kirk's testimony, standing alone, would not be sufficient to show when her motion was mailed:

There has to be evidence of when it went into the mail. And if all we have is the Defendant's testimony, then I don't know that that is something that we can rely on. I mean, it's in her best interest to say that it was mailed prior to the date where it would be untimely filed.

         The State argued that, although Kirk's motion was file-stamped on December 21, "[i]t could have been mailed the day before. It could have been mailed on the 20th, which is still untimely filed."

         Kirk testified that she was incarcerated at the Chillicothe Correctional Center. She said that she put her pro se motion in the prison mail system on December 4, 2017, the date on which her in forma pauperis affidavit was notarized. Kirk testified that she placed the motion in her housing unit's outgoing mailbox, which is picked up once a day. Once the motion was placed in the prison mailbox, Kirk testified that "it's in the Department of Corrections' hands. I don't have nothing to do with it."

         Kirk also presented the testimony of the Lafayette County Circuit Clerk, Deana Aversman. Aversman testified that mail is not delivered directly to the Lafayette County courthouse in Lexington. Instead, Aversman testified that she picks up the mail from the post office every day between 8:00 and 8:30 a.m. Once a filing is picked up from the post office, it is file stamped on the day she picks it up. If mail arrives at the post office after 8:30 a.m., it would be picked up the next day. Because of when she picks up the mail, Aversman agreed that, "if [Kirk's pro se motion] had arrived at the post office at 8:30 the day before, it wouldn't get picked up[, and therefore would not get file-stamped, ] until the next day."

         Aversman testified that the clerk's office had not retained the envelope in which Kirk mailed her pro se motion to the court. She acknowledged in her testimony that since July 2017, "we have this new rule [Rule 24.035(c)] where we are supposed to be file stamping the envelopes as well" as the motions themselves. Aversman testified that she became alerted to the requirements of the new rule by Kirk's appointed counsel, which would have occurred after counsel was appointed on December 21, 2017 - more than six months after the new rule went into effect. Aversman testified that, after being informed of the rule's requirements by Kirk's counsel, she "did a little research and discovered that we got a deployment last July, which is a methodology in letting clerks ...


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