Swallow v. State
398 S.W.3d 1
| Mo. | 2013Background
- Swallow stabbed a man July 6, 2005 and pleaded guilty to first degree assault and armed criminal action (ACA).
- The circuit court sentenced March 3, 2006: 20 years for assault and 3 years for ACA, to be served concurrently; ACA to be executed, assault suspended on probation.
- Swallow began serving the ACA sentence March 10, 2006 and did not appeal or file a Rule 24.035 motion within 180 days of delivery.
- In March 2010 probation was revoked and the assault sentence of 20 years was executed; Swallow was delivered to the DOC March 31, 2010 to serve the assault sentence.
- Within 180 days after delivery to the DOC for the assault sentence, Swallow filed a pro se Rule 24.035 motion (amended later), challenging both convictions and sentences.
- The circuit court dismissed the motion as untimely; on appeal the ruling was affirmed; focus centered on whether successive deliveries allow timely challenges under Rule 24.035.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether serial Rule 24.035 motions are permitted for multiple sentences in one judgment. | Swallow argues subsequent delivery permits timely filing within 180 days for each sentence. | Rule 24.035 requires timely challenge to all claims at first opportunity; no serial filing. | No; issuance constrains to single, unitary remedy; second delivery does not reset deadline. |
| Whether Swallow's guilty-plea counsel claim was waived due to untimely filing. | Claim existed from initial delivery; timely filing should include it. | Claim not raised in initial 180-day window is waived. | Waived; not timely filed in initial opportunity. |
| Whether Swallow's probation-revocation counsel claim is cognizable in Rule 24.035. | Claim relates to probation-revocation hearing and may be cognizable. | Such claim is not cognizable under Rule 24.035; habeas corpus is proper. | Not cognizable in Rule 24.035. |
Key Cases Cited
- Roth v. State, 921 S.W.2d 680 (Mo.App.1996) (initial delivery governs start of filing period for the challenged judgment)
- Hopkins v. State, 802 S.W.2d 956 (Mo.App.1991) (initial delivery governs timing for challenge to that judgment)
- Dorris v. State, 360 S.W.3d 260 (Mo. banc 2012) (Rule 24.035 aims for prompt, unitary post-conviction relief)
- State ex rel. Nixon v. Daugherty, 186 S.W.3d 253 (Mo. banc 2006) (Rule 24.035’s purpose to avoid delay and stale claims)
- State ex rel. Nixon v. Jaynes, 63 S.W.3d 210 (Mo. banc 2001) (Rule 24.035’s unitary remedy; precludes successive challenges)
- Wesbecher v. State, 863 S.W.2d 2 (Mo.App.1993) (overruled; serial-motions interpretation rejected)