Supreme Court of Missouri
en banc
December 7, 2017
Effective January 1, 2018
Effective January 1, 2018
In re:
(1) Correction of order of June 27, 2017, adopting a new subdivision 24.035(b), entitled "Form of Motion – Cost Deposit Not Required – Time to File – Failure to File, Effect of," of Rule 24, entitled "Misdemeanors or Felonies – Arraignment and Proceedings Before Trial."
(2) Correction of order of June 27, 2017, adopting a new subdivision 29.15(b), entitled "Form of Motion – Cost Deposit Not Required – Time to File – Failure to File, Effect of," of Rule 29, entitled "Misdemeanors or Felonies – Verdict, Sentence and New Trial.
ORDER
1. By order of June 27, 2017, this Court adopted a new subdivision 24.035(b) of Rule 24 to be effective January 1, 2018. The order is included in the July 11, 2017, advance sheets of the South Western Reporter, Third, Missouri Cases series, beginning at page Ct.R-3. The Court hereby corrects the order so that, as corrected, effective January 1, 2018, subdivision 24.035(b) shall read as follows:
24.035 CONVICTION AFTER GUILTY PLEA – CORRECTION
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(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 sentence is entered 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 sentence is entered 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 sentence is entered.
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 is entered 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.
No cost deposit shall be required.
The motion shall be filed no earlier than the date the sentence is entered 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 sentence is entered 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 sentence is entered.
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 is entered 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.
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2. By order of June 27, 2017, this Court adopted a new subdivision 29.15(b) of Rule 29 to be effective January 1, 2018. The order is included in the July 11, 2017, advance sheets of the South Western Reporter, Third, Missouri Cases series, beginning at page Ct.R-3. The Court hereby corrects the order so that, as corrected, effective January 1, 2018, subdivision 29.15(b) shall read as follows:
29.15 CONVICTION AFTER TRIAL – CORRECTION
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(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 sentence is entered 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 sentence is entered 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 sentence is entered.
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 is entered 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.
No cost deposit shall be required.
The motion shall be filed no earlier than the date the sentence is entered 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 sentence is entered 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 sentence is entered.
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 is entered 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.
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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
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ZEL M. FISCHER
Chief Justice
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ZEL M. FISCHER
Chief Justice