Opinion
No. WD 55277
Order Filed: DECEMBER 8, 1998 Modified Opinion: DECEMBER 22, 1998
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI, HONORABLE VERNON E. SCOVILLE, II, JUDGE.
Rosmary Ellen McGonagle Percival, Public Defender, Kansas City, for Appellant.
John Munson Morris, III, Asst. Atty. Gen., Jefferson City, for Respondent.
Before: Presiding Judge RIEDERER, Judge LOWENSTEIN and Judge STITH.
Movant filed a Rule 24.035 motion more than ninety days following his 1996 delivery to the Department of Corrections. His appeal from the denial of his motion for post-conviction relief was dismissed as being untimely filed. Rule 84.16(b).
The circuit court's judgment dismissing the appellant's Rule 24.035 motion as being filed out of time is confirmed.
MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(b)
This memorandum is for the information of the parties and sets forth the reasons for the order affirming the judgment.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
Hawkins appeals the denial of his motion for post-conviction relief under Rule 24.035. He had been charged with the misdemeanors of (1) careless and imprudent driving, (2) driving on a revoked license, and (3) driving while intoxicated, as well as and the felonies of (1) leaving the scene of a vehicle accident, and (2) two counts of second degree assault. Pursuant to a plea agreement on June 7, 1996, Hawkins plead guilty to the felony counts, receiving a sentence of seven years on the three counts, to be served concurrently, and the state dismissed the misdemeanor charges. On June 17, 1996 Hawkins was delivered to the Department of Corrections. On September 23, 1996 the trial court denied Hawkins' request for probation at the end of 120 days in prison. On July 17, 1997 the present motion challenging the guilty plea was filed.
The motion court dismissed Hawkins' motion for relief under the rule, with the explanation that the motion was untimely filed. Rule 24.035(b). For the same reason, this court must dismiss the appeal. There is no question the motion was out of time. Day v. State , 770 S.W.2d 692, 695 (Mo.banc 1989), and countless cases since, have held the time limitations in Rule 24.035 are reasonable and are mandatory.
The circuit court's judgment dismissing the appellant's Rule 24.035 motion as being filed out of time is confirmed.