Supreme Court of Missouri
en banc

 
In re:
 
(1) Repeal of subdivision 24.035(a), entitled "Nature of Remedy – Rules of Civil Procedure Apply;" subdivision 24.035(b), entitled "Form of Motion – Cost Deposit Not Required – Time to File – Failure to File, Effect of;" subdivision 24.035(e), entitled "Pro Se Motion – Appointment of Counsel – Amended Motion, Required When;" subdivision 24.035(g), entitled "Amended Motion – Form, Time for Filing – Response by Prosecutor;" subdivision 24.035(j), entitled "Findings and Conclusions – Judgment;" and subdivision 24.035(m), entitled "Schedule," of Rule 24, entitled "Misdemeanors or Felonies – Arraignment and Proceedings Before Trial," and in lieu thereof adoption of a new subdivision 24.035(a), entitled "Nature of Remedy – Rules of Civil Procedure Apply;" a new subdivision 24.035(b), entitled "Form of Motion – Cost Deposit Not Required – Time to File – Failure to File, Effect of;" a new subdivision 24.035(e), entitled "Pro Se Motion – Appointment of Counsel – Amended Motion, Required When;" a new subdivision 24.035(g), entitled "Amended Motion – Form, Time for Filing – Response by Prosecutor;" a new subdivision 24.035(j), entitled "Findings and Conclusions – Judgment;" and subdivision 24.035(m), entitled "Schedule."
 
(2) Repeal of subdivision 29.15(b), entitled "Form of Motion – Cost Deposit Not Required – Time to File – Failure to File, Effect of;" subdivision 29.15(e), entitled "Pro Se Motion – Appointment of Counsel – Amended Motion, Required When;" subdivision 29.15(g), entitled "Amended Motion – Form, Time for Filing – Response by Prosecutor;" subdivision 29.15(j), entitled "Findings and Conclusions – Judgment;" and subdivision 29.15(m), entitled "Schedule," of Rule 29, entitled "Misdemeanors or Felonies – Verdict, Sentence and New Trial," and in lieu thereof adoption of a new subdivision 29.15(b), entitled "Form of Motion – Cost Deposit Not Required – Time to File – Failure to File, Effect of;" a new subdivision 29.15(e), entitled "Pro Se Motion – Appointment of Counsel – Amended Motion, Required When;" a new subdivision 29.15(g), entitled "Amended Motion – Form, Time for Filing – Response by Prosecutor;" a new subdivision 29.15(j), entitled "Findings and Conclusions – Judgment;" and a new subdivision 29.15(m), entitled "Schedule."

 
 
 
1.  It is ordered that effective January 1, 2018, subdivision 24.035(a), subdivision 24.035(b), subdivision 24.035(e), subdivision 24.035(g), subdivision 24.035(j), and subdivision 24.035(m), of Rule 24 be and the same are hereby repealed and a new subdivision 24.035(a), a new subdivision 24.035(b), a new subdivision 24.035(e), a new subdivision 24.035(g), a new subdivision 24.035(j), and a new subdivision 24.035(m) adopted in lieu thereof to read as follows:

24.035  CONVICTION AFTER GUILTY PLEA – CORRECTION
 
(a) Nature of Remedy - Rules of Civil Procedure Apply. A person convicted of a felony on a plea of guilty claiming 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 this 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. The procedure to be followed for motions filed pursuant to this Rule 24.035 is governed by the rules of civil procedure insofar as applicable.
 
(b) Form of Motion - Cost Deposit Not Required - Time to File - Failure to File, Effect of. A person seeking relief pursuant to this Rule 24.035 shall file a motion to vacate, set aside or correct the judgment or sentence substantially in the form of Criminal Procedure Form No. 40.
 
No cost deposit shall be required.
 
The motion shall be filed no earlier than the date the judgment or sentence becomes final if no appeal is taken, including if no appeal is taken after any remand of the judgment or sentence following a prior appeal, or the date the mandate of the appellate court issues affirming the judgment or sentence.
 
If the motion is filed prematurely, such motion shall be considered as filed immediately after the time to file an appeal has expired if no appeal is taken, including if no appeal is taken after any remand of the judgment or sentence following a prior appeal, or the date the mandate of the appellate court issues affirming the judgment or sentence.
 
If no appeal of such judgment or sentence is taken, the motion shall be filed within 180 days of the date the judgment or sentence becomes final for purposes of appeal.
 
If an appeal of the judgment or sentence sought to be vacated, set aside or corrected is taken, the motion shall be filed within 90 days after the date the mandate of the appellate court issues affirming such judgment or sentence.
 
If an appeal of such judgment or sentence sought to be vacated, set aside or corrected is taken and the appellate court remands the case for further proceedings, the motion shall be filed within 180 days of the date the court’s resulting judgment or sentence becomes final for purposes of appeal if no appeal is taken after remand. If an appeal of the resulting judgment or sentence is taken after remand, then the motion shall be filed within 90 days after the date the mandate of the appellate court issues affirming the judgment or sentence entered after remand.
 
If the motion is sent to the sentencing court by first-class United States Mail and is addressed correctly with sufficient postage and deposited in the mail on or before the last day for filing the motion, the motion shall be deemed to be filed timely.  A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of the filing of the motion. Failure to file a motion within the time provided by this Rule 24.035 shall constitute a complete waiver of any right to proceed under this Rule 24.035 and a complete waiver of any claim that could be raised in a motion filed pursuant to this Rule 24.035.
 
 
(e) Pro Se Motion - Appointment of Counsel - Amended Motion, Required When. Within 30 days after an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant. If the pro se motion is filed prematurely, such motion shall be considered as filed immediately after the time to file an appeal has expired if no appeal is taken, including if no appeal is taken after any remand of the judgment or sentence following a prior appeal, or the date the mandate of the appellate court issues affirming the judgment or sentence. Counsel shall ascertain whether sufficient facts supporting the claims are asserted in the motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that (1) all facts supporting the claims are asserted in the pro se motion and (2) all claims known to the movant are alleged in the pro se motion. The statement shall be presented to the movant prior to filing. The movant may file a reply to the statement not later than ten days after the statement is filed.
 
 
(g) Amended Motion - Form, Time for Filing - Response by Prosecutor. Any amended motion shall be signed by movant or counsel. The amended motion shall not incorporate by reference or attachment material contained in any previously filed motion nor attach or incorporate the pro se motion. All claims shall be included within the same body and text of the amended motion.
 
If no appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion or statement in lieu of an amended motion shall be filed within 60 days of the earlier of the date both a complete transcript consisting of the guilty plea and sentencing hearing has been filed in the trial court and:

 
(1) Counsel is appointed, or
 
(2) An entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.
 
If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion or statement in lieu of an amended motion shall be filed within 60 days of the earlier of the date both the mandate of the appellate court is issued and:
 
(1) Counsel is appointed, or
 
(2) An entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.
 
The court may extend the time for filing the amended motion or statement in lieu of an amended motion, with no extension exceeding 30 days individually and the total of all extensions not to exceed 60 days.
 
Any response to the motion by the prosecutor shall be filed within 30 days after the date an amended motion or statement in lieu of an amended motion is required to be filed.
 
 
(j) Findings and Conclusions - Judgment. The court shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held. Rule 78.07(c) shall apply to these proceedings.  If the court finds that the judgment was rendered without jurisdiction, that the sentence imposed was illegal, or that there was a denial or infringement of the rights given movant by the constitution of Missouri or the constitution of the United States as to render the judgment subject to collateral attack, the court shall vacate and set aside the judgment and shall discharge the movant or resentence the movant or order a new trial or correct the judgment and sentence as appropriate.
 
 
(m) Schedule. This Rule 24.035 shall apply to all proceedings wherein sentence is pronounced on or after January 1, 2018. If sentence was pronounced prior to January 1, 2018, postconviction relief shall continue to be governed by the provisions of Rule 24.035 in effect on the date the motion was filed or December 31, 2017, whichever is earlier.
 
2.  It is ordered that effective January 1, 2018, subdivision 29.15(b), subdivision 29.15(e), subdivision 29.15(g), subdivision 29.15(j), and subdivision 29.15(m), of Rule 29 be and the same are hereby repealed and a new subdivision 29.15(b), a new subdivision 29.15(e), a new subdivision 29.15(g), a new subdivision 29.15(j), and a new subdivision 29.15(m) adopted in lieu thereof to read as follows:

29.15  CONVICTION AFTER TRIAL – CORRECTION
 
 
(b) Form of Motion - Cost Deposit Not Required - Time to File - Failure to File, Effect of. A person seeking relief pursuant to this Rule 29.15 shall file a motion to vacate, set aside or correct the judgment or sentence substantially in the form of Criminal Procedure Form No. 40.
 
No cost deposit shall be required.
 
The motion shall be filed no earlier than the date the judgment or sentence becomes final if no appeal is taken, including if no appeal is taken after any remand of the judgment or sentence following a prior appeal, or the date the mandate of the appellate court issues affirming the judgment or sentence.
 
If the motion is filed prematurely, such motion shall be considered as filed immediately after the time to file an appeal has expired if no appeal is taken, including if no appeal is taken after any remand of the judgement or sentence following a prior appeal, or the date the mandate of the appellate court issues affirming the judgment or sentence.
 
If no appeal of such judgment or sentence is taken, the motion shall be filed within 180 days of the date the judgment or sentence becomes final for purposes of appeal.
 
If an appeal of the judgment or sentence sought to be vacated, set aside or corrected is taken, the motion shall be filed within 90 days after the date the mandate of the appellate court issues affirming such judgment or sentence.
 
If an appeal of such judgment or sentence sought to be vacated, set aside or corrected is taken and the appellate court remands the case for further proceedings, the motion shall be filed within 180 days of the date the court’s resulting judgment or sentence becomes final for purposes of appeal if no appeal is taken after remand. If an appeal of the resulting judgment or sentence is taken after remand, then the motion shall be filed within 90 days after the date the mandate of the appellate court issues affirming the judgment or sentence entered after remand.
 
If the motion is sent to the sentencing court by first-class United States Mail and is addressed correctly with sufficient postage and deposited in the mail on or before the last day for filing the motion, the motion shall be deemed to be filed timely. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of the filing of the motion. Failure to file a motion within the time provided by this Rule 29.15 shall constitute a complete waiver of any right to proceed under this Rule 29.15 and a complete waiver of any claim that could be raised in a motion filed pursuant to this Rule 29.15.

 
 
(e) Pro Se Motion - Appointment of Counsel - Amended Motion, Required When. Within 30 days after an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant. If the pro se motion is filed prematurely, such motion shall be considered as filed immediately after the time to file an appeal has expired if no appeal is taken, including if no appeal is taken after any remand of the judgment or sentence following a prior appeal, or the date the mandate of the appellate court issues affirming the judgment or sentence. Counsel shall ascertain whether sufficient facts supporting the claims are asserted in the motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that (1) all facts supporting the claims are asserted in the pro se motion and (2) all claims known to the movant are alleged in the pro se motion. The statement shall be presented to the movant prior to filing. The movant may file a reply to the statement not later than ten days after the statement is filed.
 
 
(g) Amended Motion - Form, Time for Filing - Response by Prosecutor. Any amended motion shall be signed by movant or counsel. The amended motion shall not incorporate by reference or attachment material contained in any previously filed motion nor attach or incorporate the pro se motion. All claims shall be included within the same body and text of the amended motion.
 
If no appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion or statement in lieu of an amended motion shall be filed within 60 days of the earlier of the date both a complete transcript of the trial and sentencing hearing has been filed in the trial court and:
 
(1) Counsel is appointed, or
 
(2) An entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.
 
If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion or statement in lieu of an amended motion shall be filed within 60 days of the earlier of the date both the mandate of the appellate court is issued and:
 
(1) Counsel is appointed, or
 
(2) An entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.
 
The court may extend the time for filing the amended motion or statement in lieu of an amended motion, with no extension exceeding 30 days individually and the total of all extensions not to exceed 60 days.
 
Any response to the motion by the prosecutor shall be filed within 30 days after the date an amended motion or statement in lieu of an amended motion is required to be filed.
 
 
(j) Findings and Conclusions – Judgment. The court shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held. Rule 78.07(c) shall apply to these proceedings. If the court finds that the judgment was rendered without jurisdiction, that the sentence imposed was illegal, or that there was a denial or infringement of the rights given movant by the constitution of Missouri or the constitution of the United States as to render the judgment subject to collateral attack, the court shall vacate and set aside the judgment and shall discharge the movant or resentence the movant or order a new trial or correct the judgment and sentence as appropriate.
 
 
(m) Schedule. This Rule 29.15 shall apply to all proceedings wherein sentence is pronounced on or after January 1, 2018. If sentence was pronounced prior to January 1, 2018, postconviction relief shall continue to be governed by
the provisions of Rule 29.15 in effect on the date the motion was filed or December 31, 2017, whichever is earlier.


3.  It is ordered that notice of this order be published in the Journal of The Missouri Bar.
     
4.  It is ordered that this order be published in the South Western Reporter.

Day – to – Day

_______________________________
PATRICIA BRECKENRIDGE
Chief Justice