Section 27.11 Examination of Defendant as to Post-Conviction Relief and Assistance of Counsel

• Library: Criminal Practice 2012 Supp

2. (§27.11) Examination of Defendant as to Post-Conviction Relief and Assistance of Counsel

At the conclusion of the final sentencing, the court is to advise the defendant of the right to post-conviction relief under Rule 24.035 or Rule 29.15. Rule 24.035 is applicable if the defendant pled guilty to a felony, and Rule 29.15 is applicable if the defendant was found guilty of a felony after a trial. Rule 29.07(b)(4). Generally the court will advise the defendant of the grounds on which a motion may be filed and the time limitation for filing the motion. The grounds for filing include allegations that:

· the conviction or sentence violates the Constitution or laws of the state of Missouri or of the United States;

· assistance of counsel at the trial or appellate level was ineffective;

· the court was without jurisdiction to impose the sentence; or

· the sentence was in excess of the maximum limit authorized by statute.

The time limit for filing the motion is 90 days after the date the mandate of the appellate court is issued affirming the judgment or sentence if an appeal has been taken, or 180 days after the date the defendant is delivered to the custody of the Department of Corrections if no appeal has been taken. Usually the court will advise the defendant that failure to meet these time limitations will completely waive any claims that the defendant may have for relief. Usually the court will require the defendant to acknowledge in writing that the defendant has been advised of the right to file for post-conviction relief. It is advisable for the defendant’s attorney to provide in writing to the defendant the applicable rules regarding post-conviction relief.

Rule 29.07(b)(4) also requires the court, at the conclusion of the final sentencing, to examine the defendant regarding the effectiveness or ineffectiveness of the attorneys that have represented the defendant throughout the course of the criminal proceedings. This examination may be conducted outside the presence of the defendant’s counsel, but this is not required. Although each trial attorney wants the client...