Section 10.10 The Motion

LibraryApp Ct Prac 2015 Supp

1. (§10.10) The Motion

Rule 24.035 provides a remedy to vacate, set aside, or correct a sentence after a person has been convicted of a felony on a plea of guilty and has been delivered to the custody of the Department of Corrections. This rule does not afford relief to persons convicted of misdemeanors or persons who are not in the custody of the Department of Corrections. Thus, a defendant convicted of a felony but sentenced to jail appears not to have this remedy available. In Thomas v. State, 808 S.W.2d 364 (Mo. banc 1991), the court held that a defendant who was sentenced for a felony but placed on probation was within the constructive custody of the Department of Corrections; therefore, his motion to vacate, which was filed after his probation was revoked, was untimely as not having been filed within 90 days of his sentencing.

For the motion to be successful, the judgment of conviction or sentence imposed must:

· violate the constitution or laws of Missouri or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel;

· have been imposed by a court that was without jurisdiction to do so; or

· be in excess of the maximum sentence authorized by law.

Rule 24.035(a) is the exclusive procedure by which persons may seek relief in the sentencing court for those claims. The procedure in the trial court is governed by the Missouri Rules of Civil Procedure insofar as they apply. The motion should follow the form of Criminal Procedure Form No. 40. See §10.16, infra. No cost deposit is required. If an appeal of the judgment has been taken, the motion must be filed within 90 days after the date the appellate court mandate was issued; if no appeal was taken, the motion must be filed within 90 days after the movant was delivered to the custody of the Department of Corrections. Rule 24.035(b); Hall v. State, 992 S.W.2d 895, 897 (Mo. App. W.D. 1999). Failure to file the motion within that time constitutes a complete waiver of the right to proceed under this rule. A guilty plea may be withdrawn before sentencing under Rule 24.02(d)4 when the court rejects a plea agreement. Rule 29.07(d) provides that a guilty plea may only be withdrawn before sentence is imposed or suspended except to correct manifest injustice.

An original and two copies of the motion should be filed with the clerk of the trial court. The clerk should then immediately deliver a copy to the prosecuting attorney and notify the sentencing judge...

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