Calvin Mitchell, Appellant, v. State of Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Calvin Mitchell, Appellant, v. State of Missouri, Respondent. Case Number: ED76697 Handdown Date: 03/21/2000 Appeal From: Circuit Court of St. Charles County, Hon. Grace Nichols Counsel for Appellant: S. Paige Canfield Counsel for Respondent: Catherine Chatman Opinion Summary: Calvin Mitchell appeals the denial of his Rule 24.035 post-conviction motion without an evidentiary hearing. JUDGMENT VACATED AND REMANDED FOR DISMISSAL. Division Three holds: A Rule 24.035 motion for post-conviction relief must be filed within ninety days after a defendant is physically delivered to the Missouri Department of Corrections. Such time limits are valid and mandatory. Mitchell filed his motion ninety-five days after his delivery to the Department of Corrections. Consequently, his motion should have been dismissed by the motion court. Citation: Opinion Author: Clifford H. Ahrens, Judge Opinion Vote: JUDGMENT VACATED AND REMANDED FOR DISMISSAL. Teitelman, P.J., and Mooney, J., concur. Opinion: Calvin Mitchell ("Movant") appeals the denial of his Rule 24.035 post-conviction motion without an evidentiary hearing. Movant asserts the trial court clearly erred in denying his motion without an evidentiary hearing because he suffered from ineffective assistance of trial counsel. Because the Rule 24.035 post-conviction motion was filed out of time, we vacate the judgment and remand for dismissal.

After entering a plea of guilty, movant was convicted of one count of forgery, pursuant to section 570.090 RSMo (1994), and sentenced to five years' imprisonment which was to be served consecutively with a sentence movant was already serving. Movant was delivered to the Department of Corrections on February 26, 1996. On May 31, 1996, movant filed a Rule 24.035 motion to vacate, set aside or correct the judgment or sentence. The motion court denied movant's motion without an evidentiary hearing, finding movant received effective assistance of counsel and his plea of guilty was knowingly and voluntarily made. This appeal follows. A Rule 24.035 motion must be filed within 90 days after a defendant is physically delivered to the Missouri Department of Corrections. Rule 24.035(b), Jones v. State, 2 S.W.3d 825, 826 (Mo. App. 1999). The time limits of Rule 24.035 are constitutional and mandatory, representing a strict guideline for the filing of post-conviction motions. Id. Failure to file a timely motion constitutes a complete waiver of the right to proceed under the rule. Id. Moreover, the issue of timeliness is jurisdictional and may be raised for the first time on appeal. Id. at 825. Movant was delivered to the Missouri Department of Corrections on February 26, 1996. He filed his Rule 24.035 post-conviction motion on May 31, 1996, ninety-five days later. This motion was filed out of time and should have been summarily dismissed by the motion court. The motion court technically erred in considering movant's motion on the merits. See Jones, 2 S.W.3d at 826. The judgment is vacated and remanded for dismissal of the motion under Rule 24.035. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.