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Title XXXVII CRIMINAL PROCEDURE

Chapter 547

previous next Effective - 28 Aug 1997bottom

  547.360.  Post conviction relief. — 1.  A person convicted of a felony on a plea of guilty or after trial 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 this section.  This section 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 section is governed by the rules of civil procedure insofar as applicable.

  2.  A person seeking relief pursuant to this section 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.  If an appeal of the judgment sought to be vacated, set aside or corrected was taken, the motion shall be filed within ninety days after the date the mandate of the appellate court is issued.  If no appeal of such judgment was taken, the motion shall be filed within ninety days of the date the person is delivered to the custody of the department of corrections.  Failure to file a motion within the time provided by this section shall constitute a complete waiver of any right to proceed pursuant to this section and a complete waiver of any claim that could be raised in a motion filed pursuant to this section.

  3.  Movant shall file the motion and two copies thereof with the clerk of the trial court.  The clerk shall immediately deliver a copy of the motion to the prosecutor.  Upon receipt of the motion, the clerk shall notify the sentencing judge and shall notify the court reporter to prepare and file the complete transcript of the movant's trial, guilty plea and sentencing hearing if the transcript has not yet been prepared or filed.  If the motion is filed by an indigent pro se movant, the clerk shall forthwith send a copy of the motion to the counsel who is appointed to represent the movant.

  4.  The motion to vacate shall include every claim known to the movant for vacating, setting aside, or correcting the judgment or sentence.  The movant shall declare in the motion that the movant has listed all claims for relief known to the movant and acknowledging the movant's understanding that the movant waives any claim for relief known to the movant that is not listed in the motion.

  5.  When an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant.  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.  

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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.

  6.  For good cause shown, counsel may be permitted to withdraw upon the filing of an entry of appearance by successor counsel.  If appointed counsel is permitted to withdraw, the court shall cause new counsel to be appointed.  If an indigent movant is seeking to set aside a death sentence, successor counsel shall have at least the same qualifications as required by section 547.370 as the withdrawing counsel.

  7.  Any amended motion shall be signed by movant or counsel. The amended motion shall not incorporate by reference material contained in any previously filed motion.  If no appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of:

  (1)  The date both a complete transcript consisting of the guilty plea and sentencing hearing has been filed in the trial court and counsel is appointed; or

  (2)  The date both a complete transcript has been filed in the trial court and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.  

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If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of:

  (3)  The date both the mandate of the appellate court is issued and counsel is appointed; or

  (4)  The date both the mandate of the appellate court is issued and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.  

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The court may extend the time for filing the amended motion for one additional period not to exceed thirty days.  Any response to the motion by the prosecutor shall be filed within thirty days after the date an amended motion is required to be filed.

  8.  If the court shall determine the motion and the files and records of the case conclusively show that the movant is entitled to no relief, a hearing shall not be held.  In such case, the court shall issue findings of fact and conclusions of law as provided in subsection 10 of this section.

  9.  At any hearing ordered by the court the movant need not be present. The court may order that testimony of the movant shall be received by deposition.  The hearing shall be on the record and shall be confined to the claims contained in the last timely filed motion.  The court may continue the hearing upon a showing of good cause.  The movant has the burden of proving the movant's claims for relief by a preponderance of the evidence.

  10.  The court shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.  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.

  11.  An order sustaining or overruling a motion filed under the provisions of this section shall be deemed a final judgment for purposes of appeal by the movant or the state.  If the court finds that a movant allowed an appeal is an indigent person, it shall authorize an appeal in forma pauperis and furnish without cost a record of all proceedings for appellate review.  When the appeal is taken, the circuit court shall order the official court reporter to promptly prepare the transcript necessary for appellate review without requiring a letter from the movant's counsel ordering the same.  If the sentencing court finds against the movant on the issue of indigence and the movant so requests, the court shall certify and transmit to the appellate court a transcript and legal file of the evidence solely on the issue of indigence so as to permit review of that issue by the appellate court.  Appellate review of the trial court's action on the motion filed under this section shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.

  12.  The circuit court shall not entertain successive motions.

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(L. 1997 S.B. 56 §§ 12 and 14)


---- end of effective   28 Aug 1997 ----

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