Miller v. State

PARRISH, Judge.

Rick A. Miller (movant) filed a Rule 24.035 motion in the Circuit Court of Phelps County. That court denied relief because the motion was not filed within the time prescribed by Rule 24.035(b). Movant appeals. He contends the motion court erred in denying relief because the absolute deadline the rule imposes for filing motions for post-conviction relief violates the United States and Missouri constitutions.

Movant was convicted, based on a plea of guilty, of murder in the second degree, § 565.021.1(1), RSMo 1986. He was sentenced September 19, 1988, to imprisonment for a term of 30 years and was delivered to the custody of the Department of Corrections September 21, 1988. He filed a pro se motion for post-conviction relief pursuant to Rule 24.035 April 16, 1993.

The trial court found that the motion was “filed out of time.” Rule 24.035(b) requires a person seeking relief under Rule 24.035 to file their motion within 90 days after delivery to the custody of the Department of Corrections. Failure to file the motion within the specified time constitutes a complete waiver of any right to proceed thereunder. The time constraint imposed by Rule 24.035 is valid. Day v. State, 770 S.W.2d 692, 695 (Mo. banc), cert. denied sub nom., Walker v. State, 493 U.S. 866, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989).

The motion court’s findings are not clearly erroneous. No error of law appears. Further opinion would have no precedential value. The judgment is affirmed in compliance with Rule 84.16(b).

GARRISON, P.J., and CROW, J., concur.