Court of Appeals of Missouri, Western District, Second Division
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.
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.
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
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."
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.
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.
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."
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
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."
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 ...