22 S.W.3d 783 | Mo. Ct. App. | 2000
Kenneth N. Logan appeals the dismissal of his motion for declaratory relief for failing to state a claim upon which relief can be granted. In his motion, Mr. Logan asked the court to vacate his conviction for sale of a controlled substance because his guilty plea was not knowingly, intelligently and voluntarily made, and the trial court lacked jurisdiction to enter its judgment of conviction and sentence. On appeal, Mr. Logan contends that the motion court erred in dismissing his motion because he pleaded sufficient facts entitling him to relief. Because we find the motion court lacked jurisdiction to consider Mr. Logan’s motion, we reverse and remand with directions to the Court below to dismiss the motion based on lack of jurisdiction.
Mr. Logan sold marijuana to an undercover police officer. He was subsequently indicted by a grand jury for one count of the class B felony of sale of a controlled substance, in violation of § 195.211, RSMo 1994. On October 5, 1998, Mr. Logan pleaded guilty. The trial court sentenced him on February 19, 1999, to five years’ imprisonment. Mr. Logan was delivered to the custody of the Missouri Department of Corrections on February 26,1999.
On September 1,1999, Mr. Logan filed a motion which he entitled, “Motion for Declaratory Relief.” Mr. Logan averred in his motion that the undercover police officer’s written report was false, and his counsel failed to apprise him of the false nature of the police report before he pleaded guilty. Mr. Logan claimed that, as a result, his guilty plea was not knowingly, intelligently, and voluntarily made, and his constitutional rights to due process of law
Although raised by neither party, this court must address the timeliness of Mr. Logan’s motion for post-conviction relief, as it is jurisdictional. See Hall v. State, 992 S.W.2d 895, 897 (Mo.App.1999). Rule 29.07(d), the rule pursuant to which Mr. Logan claimed to seek relief, provides that after a defendant’s sentence is imposed, the court “may set aside the judgment of conviction and permit the defendant to withdraw his plea” in order to correct a “manifest injustice.” Rule 29.07(d) imposes no time limits upon the filing of a motion seeking relief under that rule. Reynolds v. State, 939 S.W.2d 451, 454 (Mo.App.1996). If, however, a defendant raises claims in a Rule 29.07(d) motion which are within those enumerated in Rule 24.035, the motion “remains a Rule 24.035 motion and is subject.to all the terms and conditions of Rule 24.035, including the time limitations[,]” regardless of how the motion is entitled. State v. Pendleton, 910 S.W.2d 268, 271 (Mo.App. 1995). The rationale is that “[t]o hold otherwise would emasculate Rule 24.035 and constitute Rule 29.07(d) an escape hatch through which any claim procedurally barred by Rule 24.035 could scurry into trial courts.” State v. Ryan, 813 S.W.2d 898, 902 (Mo.App.1991).
Claims cognizable under Rule 24.035 are set forth in subsection (a) of the rule,
A person convicted of a felony on a plea of guilty and delivered to the custody of the department of corrections who claims that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of Rule 24.035. This Rule 24.035 provides the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated.
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In his motion, Mr. Logan asserted that his counsel’s failure to apprise him of the alleged falsity of the police report rendered his guilty plea unknowingly, unintel-ligently, and involuntarily made and, as a result, his constitutional rights were violated. This claim is among those enumerated in Rule 24.035(a). Reynolds, 939 S.W.2d at 455. Mr. Logan’s other claim, that the alleged false nature of the police report rendered the indictment defective and thereby deprived the trial court of jurisdiction to enter its judgment of conviction and sentence, is also among those enumerated in Rule 24.035(a). Because Rule 24.035 provided the exclusive procedure by which Mr. Logan could seek relief for his claims, Mr. Logan was subject to the time limits imposed by that rule. Pendleton, 910 S.W.2d at 271.
All concur.
. Rule 24.035 was amended on July 1, 2000. This court refers to the version of Rule 24.035 in effect in September of 1999.
. Mr. Logan asserts that counsel failed to tell him about the alleged falsity of the police officer’s report until after the ninety-day deadline for filing a Rule 24.035 motion. In Pendleton, 910 S.W.2d 268, 271, this court raised the question whether the ninety-day time limit in Rule 24.035 may be tolled when a movant