547.360. Post conviction relief.
Post conviction relief.
547.360. 1. A person convicted of a felony on a plea of guilty orafter trial and delivered to the custody of the department of correctionswho claims that the conviction or sentence imposed violates theconstitution and laws of this state or the constitution of the UnitedStates, including claims of ineffective assistance of trial and appellatecounsel, that the court imposing the sentence was without jurisdiction todo so, or that the sentence imposed was in excess of the maximum sentenceauthorized by law may seek relief in the sentencing court pursuant to theprovisions of this section. This section provides the exclusive procedureby which such person may seek relief in the sentencing court for the claimsenumerated. The procedure to be followed for motions filed pursuant tothis section is governed by the rules of civil procedure insofar asapplicable.
2. A person seeking relief pursuant to this section shall file amotion to vacate, set aside or correct the judgment or sentencesubstantially in the form of Criminal Procedure Form No. 40. No costdeposit shall be required. If an appeal of the judgment sought to bevacated, set aside or corrected was taken, the motion shall be filed withinninety 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 withinninety days of the date the person is delivered to the custody of thedepartment of corrections. Failure to file a motion within the timeprovided by this section shall constitute a complete waiver of any right toproceed pursuant to this section and a complete waiver of any claim thatcould be raised in a motion filed pursuant to this section.
3. Movant shall file the motion and two copies thereof with the clerkof the trial court. The clerk shall immediately deliver a copy of themotion to the prosecutor. Upon receipt of the motion, the clerk shallnotify the sentencing judge and shall notify the court reporter to prepareand file the complete transcript of the movant's trial, guilty plea andsentencing hearing if the transcript has not yet been prepared or filed.If the motion is filed by an indigent pro se movant, the clerk shallforthwith send a copy of the motion to the counsel who is appointed torepresent the movant.
4. The motion to vacate shall include every claim known to the movantfor vacating, setting aside, or correcting the judgment or sentence. Themovant shall declare in the motion that the movant has listed all claimsfor relief known to the movant and acknowledging the movant's understandingthat the movant waives any claim for relief known to the movant that is notlisted in the motion.
5. When an indigent movant files a pro se motion, the court shallcause counsel to be appointed for the movant. Counsel shall ascertainwhether sufficient facts supporting the claims are asserted in the motionand whether the movant has included all claims known to the movant as abasis for attacking the judgment and sentence. If the motion does notassert sufficient facts or include all claims known to the movant, counselshall file an amended motion that sufficiently alleges the additional factsand claims. If counsel determines that no amended motion shall be filed,counsel shall file a statement setting out facts demonstrating what actionswere taken to ensure that:
(1) All facts supporting the claims are asserted in the pro semotion; and
(2) All claims known to the movant are alleged in the pro se motion.
The statement shall be presented to the movant prior to filing. The movantmay file a reply to the statement not later than ten days after thestatement is filed.
6. For good cause shown, counsel may be permitted to withdraw uponthe filing of an entry of appearance by successor counsel. If appointedcounsel is permitted to withdraw, the court shall cause new counsel to beappointed. If an indigent movant is seeking to set aside a death sentence,successor counsel shall have at least the same qualifications as requiredby section 547.370 as the withdrawing counsel.
7. Any amended motion shall be signed by movant or counsel. Theamended motion shall not incorporate by reference material contained in anypreviously filed motion. If no appeal of the judgment sought to bevacated, set aside, or corrected is taken, the amended motion shall befiled within sixty days of the earlier of:
(1) The date both a complete transcript consisting of the guilty pleaand sentencing hearing has been filed in the trial court and counsel isappointed; or
(2) The date both a complete transcript has been filed in the trialcourt and an entry of appearance is filed by any counsel that is notappointed but enters an appearance on behalf of movant.
If an appeal of the judgment sought to be vacated, set aside, or correctedis taken, the amended motion shall be filed within sixty days of theearlier of:
(3) The date both the mandate of the appellate court is issued andcounsel is appointed; or
(4) The date both the mandate of the appellate court is issued and anentry of appearance is filed by any counsel that is not appointed butenters an appearance on behalf of movant.
The court may extend the time for filing the amended motion for oneadditional period not to exceed thirty days. Any response to the motion bythe prosecutor shall be filed within thirty days after the date an amendedmotion is required to be filed.
8. If the court shall determine the motion and the files and recordsof the case conclusively show that the movant is entitled to no relief, ahearing shall not be held. In such case, the court shall issue findings offact and conclusions of law as provided in subsection 10 of this section.
9. At any hearing ordered by the court the movant need not bepresent. The court may order that testimony of the movant shall bereceived by deposition. The hearing shall be on the record and shall beconfined to the claims contained in the last timely filed motion. Thecourt may continue the hearing upon a showing of good cause. The movanthas the burden of proving the movant's claims for relief by a preponderanceof the evidence.
10. The court shall issue findings of fact and conclusions of law onall issues presented, whether or not a hearing is held. If the court findsthat the judgment was rendered without jurisdiction, that the sentenceimposed was illegal, or that there was a denial or infringement of therights given movant by the Constitution of Missouri or the Constitution ofthe United States as to render the judgment subject to collateral attack,the court shall vacate and set aside the judgment and shall discharge themovant or resentence the movant or order a new trial or correct thejudgment and sentence as appropriate.
11. An order sustaining or overruling a motion filed under theprovisions of this section shall be deemed a final judgment for purposes ofappeal by the movant or the state. If the court finds that a movantallowed an appeal is an indigent person, it shall authorize an appeal informa pauperis and furnish without cost a record of all proceedings forappellate review. When the appeal is taken, the circuit court shall orderthe official court reporter to promptly prepare the transcript necessaryfor appellate review without requiring a letter from the movant's counselordering the same. If the sentencing court finds against the movant on theissue of indigence and the movant so requests, the court shall certify andtransmit to the appellate court a transcript and legal file of the evidencesolely on the issue of indigence so as to permit review of that issue bythe appellate court. Appellate review of the trial court's action on themotion filed under this section shall be limited to a determination ofwhether the findings and conclusions of the trial court are clearlyerroneous.
12. The circuit court shall not entertain successive motions.
(L. 1997 S.B. 56 §§ 12 and 14)