Gerlt v. State
339 S.W.3d 578
| Mo. Ct. App. | 2011Background
- Gerlt was charged in Howard County with three counts of driving while license revoked, each a class-D felony, with a prior/persistent felony offender allegation.
- In August 2007, Gerlt pleaded guilty to Count II in exchange for dismissal of Counts I and III, withdrawal of prior/persistent offender allegations, and a four-year sentence with suspended execution and five years of probation.
- In February 2009, the State moved to revoke probation; Gerlt admitted the violation, and the court revoked probation and imposed the suspended four-year sentence.
- Gerlt was delivered to the Department of Corrections on March 20, 2009.
- On September 17, 2009, Gerlt filed a pro se Rule 24.035 post-conviction motion alleging ineffective assistance of plea counsel for not advising of a potential defense to Count II; the motion was later amended by counsel.
- The motion court denied relief after an evidentiary hearing; Gerlt appeals the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the Rule 24.035 motion | Gerlt asserts untimely filing should be excused by Webb-based reasoning. | State did not raise timeliness in motion court; time limits govern waiver of claims. | Timeliness issues waived due to failure to raise in motion court; merit addressed. |
| Ineffective assistance of plea counsel—existence of a defense | Counsel failed to advise of a defense based on officer Oswald's apparent authority to dismiss Count II. | Defense relied on non-existent equitable immunity; officer lacked authority to grant immunity; counsel not ineffective. | No ineffective assistance; the asserted defense was not viable. |
| Whether the motion court erred in not addressing the defense theory with specific findings | Rule 24.035(j) requires specific findings and conclusions for appellate review. | State argues preserved issues were waived; timing and form concerns addressed. | Gerlt failed to preserve this claim due to not filing a Rule 78.07(c) amendment; point dismissed. |
Key Cases Cited
- Gehrke v. State, 280 S.W.3d 54 (Mo. banc 2009) (timeliness of post-conviction motions governed by Rule 24.035; waiver if not raised)
- Bullard v. State, 853 S.W.2d 921 (Mo. banc 1993) (timeliness defenses and waivers in post-conviction context)
- Snyder v. State, 334 S.W.3d 735 (Mo.App. W.D.2011) (state waives timeliness defense by failing to raise in motion court)
- Webb v. State ex rel. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009) (timeliness not jurisdictional; procedural matter; can be waived)
- McCracken v. Wal-Mart Stores E., LP, 298 S.W.3d 473 (Mo. banc 2009) (non-jurisdictional defenses may be waived if not timely raised)
- Munn v. McKelvey, 733 S.W.2d 765 (Mo. banc 1987) (promises of immunity not binding; prosecutors/police immunity absent authority)
- Roberts v. State, 276 S.W.3d 833 (Mo. banc 2009) (plea voluntariness and knowingness; standards for guilty pleas)