566 S.W.3d 269
Mo. Ct. App.2019Background
- Bishop pled guilty to felony driving while revoked, received a three-year sentence suspended and five years probation; probation later revoked and sentence executed.
- Bishop filed a pro se Rule 24.035 post-conviction motion alleging counsel misled him about the amount of time he would serve and that he would have accepted a 120-day offer if properly advised.
- Bishop indicated indigence on the form and completed a forma pauperis affidavit.
- The motion court dismissed Bishop’s pro se motion without appointing counsel and made a ruling that the length of time to be served is a collateral consequence and counsel had no obligation to advise on that.
- Bishop appealed; both parties agreed the court erred in failing to appoint counsel under Rule 24.035(e).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the motion court was required to appoint counsel for an indigent movant under Rule 24.035(e) | Bishop: Rule 24.035 requires appointment of counsel within 30 days for indigent movants; failing to appoint counsel was error | State: Agreed the court erred in not appointing counsel | Court: Reversed and remanded; appointment of counsel is mandatory and the court must appoint counsel on remand |
Key Cases Cited
- Sanford v. State, 345 S.W.3d 881 (Mo. App. W.D. 2011) (appointment of counsel under Rule 24.035 is mandatory and counsel must file amended motion when appropriate)
- Williams v. State, 494 S.W.3d 638 (Mo. App. W.D. 2016) (indigency should be liberally assessed and courts should ensure appointment of counsel for post-conviction movants)
- Bennett v. State, 88 S.W.3d 448 (Mo. banc 2002) (a notarized in forma pauperis affidavit with record showing prior in forma pauperis status suffices to trigger appointment of counsel)
- Burston v. State, 343 S.W.3d 691 (Mo. App. E.D. 2011) (dismissal without prejudice is appealable when it effectively terminates the plaintiff’s chosen forum)