Phelps v. State
2011 Mo. App. LEXIS 1448
| Mo. Ct. App. | 2011Background
- Phelps pled guilty to first-degree child molestation in June 2009 and was sentenced to six years in prison.
- He was delivered to the Department of Corrections on August 21, 2009.
- On February 17, 2010, Phelps filed a pro se Rule 24.035 post-conviction motion; counsel later amended it.
- The State moved to dismiss as untimely under Rule 24.035(b)'s 180-day deadline measured from delivery to the DOC.
- The circuit court dismissed the motion, ruling 181 days elapsed by counting from August 21, 2009 to February 17, 2010, inclusive.
- The court of appeals reverses, holding Rule 44.01(a) excludes the delivery day from the 180-day computation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 180-day period under Rule 24.035(b) includes the day of delivery to the DOC. | Phelps contends delivery day should be excluded under Rule 44.01(a). | State argues the delivery day should be counted, making motion untimely. | Rule 44.01(a) applies; delivery day is excluded, motion timely. |
Key Cases Cited
- Bond v. State, 326 S.W.3d 828 (Mo. App. 2010) (discusses when the 180-day period begins to run but not inclusion of delivery day)
- Andrews v. State, 282 S.W.3d 372 (Mo. App. 2009) (delivery day not included in computation; end date example)
- Hall v. State, 992 S.W.2d 895 (Mo. App. 1999) (clarifies timing when movant delivered to DOC)
- Stevens v. State, 208 S.W.3d 893 (Mo. banc. 2006) (notes timing for filing related to DOC custody)
- Gerlt v. State, 339 S.W.3d 578 (Mo. App. 2011) (timing in Rule 24.035 context)
- Morley v. State, 68 S.W.3d 443 (Mo. App. 2001) (precedent on time limits under prior rule)
- Unnerstall v. State, 53 S.W.3d 589 (Mo. App. 2001) (prior time limit computation guidance)
- Hoskins v. State, 329 S.W.3d 695 (Mo. banc. 2010) (waiver scope of claims under Rule 24.035(d))