DocketNumber: No. ED 105615
Citation Numbers: 556 S.W.3d 65
Judges: Dowd
Filed Date: 5/22/2018
Status: Precedential
Modified Date: 1/21/2022
Cody Caldwell ("Movant") appeals from the judgment of the motion court denying his Rule 24.035 motion for post-conviction relief following an evidentiary hearing. We dismiss Movant's appeal pursuant to the escape rule. See Nichols v. State ,
After being charged with one count of second-degree burglary and one count of misdemeanor stealing, Movant pled guilty to felony burglary, and the State dismissed the misdemeanor stealing charge. At sentencing on June 4, 2014, the trial court ordered a suspended imposition of sentence ("SIS") with 120 days shock incarceration in the county jail. Movant was placed on probation for five years.
After the State filed a motion to revoke Movant's probation, Movant appeared before *67the court on December 3, 2014, and the case was passed by agreement to February 4, 2015. On January 23, 2015, Movant's probation was suspended, and a capias warrant was issued. A copy of the order was sent to Movant per the court's docket entries. Movant failed to appear on February 4, 2015, and according to the docket entries, the case was passed by agreement to the court's first available date after service of the warrant. On September 18, 2015, the case was again passed to December 2, 2015, for service of the capias warrant. Movant failed to appear on December 2, 2015, and again the case was passed for the court's first available date after service of the warrant.
On March 2, 2016, Movant's probation violation hearing was held, at which time Movant appeared in person. At the hearing, Movant admitted to violating his probation by failing to report to his probation officer, and the court revoked his probation and sentenced him to ten years in the department of corrections. Movant explained that he went to Florida to get help for his drug problem and that he thought it was the right thing to do because he would get in trouble if his probation officer learned he had a drug problem. When the trial court asked whether it occurred to him to tell his probation officer, he responded, "I still don't know what I was thinking then. There wasn't a day I had a clear mind."
Thereafter, Movant timely filed his pro se motion for post-conviction relief, and his appointed counsel filed an amended motion.
On appeal, Movant claims the motion court clearly erred in denying both of the post-conviction claims included in his amended motion. We do not reach Movant's claims regarding the motion court's denial of his Rule 24.035 motion because we dismiss Movant's appeal pursuant to the escape rule.
As this Court has explained,
The escape rule is a judicially-created doctrine that operates to deny the right of appeal to a defendant who escapes justice. The escape rule applies to appeals on the merits as well as to motions for post-conviction relief under Rule 29.15 and 24.035. The escape rule can be invoked to dismiss post-conviction appeals regardless of whether the motion court reaches the merits of a movant's claim or dismisses the motion based on its application of the escape rule.
Nichols ,
"Our Supreme Court has held that a delay of more than eight months necessarily has an adverse impact on the criminal justice system." Nichols ,
Movant's appeal from the denial of his Rule 24.035 motion for post-conviction relief with an evidentiary hearing is dismissed.
Sherri B. Sullivan, J. and Kurt S. Odenwald, J., concur.
While the record indicates some question as to when the necessary transcripts were filed, the amended motion was timely filed even based upon the earlier of the dates offered for filing the transcripts. Based upon that earlier filing date, Movant's amended motion was due on January 15, 2017, which was a Sunday and the following Monday was a holiday. Accordingly, under Rule 44.01(a), the amended motion was timely filed on January 17, 2017.