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Hill v. State

Missouri Court of Appeals, Southern District, Division Two
Jan 30, 1990
783 S.W.2d 501 (Mo. Ct. App. 1990)

Opinion

No. 16364.

January 30, 1990.

APPEAL FROM THE CIRCUIT COURT, LACLEDE COUNTY, MARY DICKERSON, J.

S. Dean Price, Sp. Dist. Defender, Springfield, for movant-appellant.

William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.


Movant Larry E. Hill appeals from the trial court's denial, after evidentiary hearing, of his Rule 24.035 motion seeking to vacate a judgment and sentence pronounced by that court on July 28, 1986. The judgment was entered pursuant to a plea of guilty. The sentence was executed on May 20, 1987, after movant's probation had been revoked.

All references to rules are to Missouri Rules of Court, V.A.M.R.

The instant motion was filed on January 5, 1989, and was untimely. Movant had not filed a prior motion under Rule 27.26. Accordingly, the deadline for filing the instant motion was "on or before June 30, 1988," Rule 24.035( l), because the sentence was pronounced prior to January 1, 1988.

The time limitations contained in Rule 24.035 are valid and mandatory. Day v. State, 770 S.W.2d 692, 695[1] (Mo. banc 1989). The failure of movant to file a motion on or before June 30, 1988, "constituted a complete waiver of the right to proceed under [Rule 24.035]." Id. at 696[2]. See also White v. State, 779 S.W.2d 571 (Mo. banc 1989).

Although the trial court heard the motion on the merits and denied it, its correct course would have been to enter an order of dismissal. Pursuant to Rule 84.14, this court hereby sets aside the order of the trial court and, in lieu thereof, enters the following order: "This proceeding is dismissed for the reason that it was not filed within the time limit prescribed by Rule 24.035(1), V.A.M.R."

As so amended, the judgment is affirmed.

All concur.


Summaries of

Hill v. State

Missouri Court of Appeals, Southern District, Division Two
Jan 30, 1990
783 S.W.2d 501 (Mo. Ct. App. 1990)
Case details for

Hill v. State

Case Details

Full title:LARRY E. HILL, MOVANT-APPELLANT, v. STATE OF MISSOURI, RESPONDENT

Court:Missouri Court of Appeals, Southern District, Division Two

Date published: Jan 30, 1990

Citations

783 S.W.2d 501 (Mo. Ct. App. 1990)

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