Written by attorney Kevin Louis Schriener

The Basics of Missouri Postconviction Relief

The State of Missouri provides postconviction remedies to criminal defendants who have been convicted after entering a guilty plea and those who have been found guilty by a judge or jury after a trial. A defendant cannot seek postconviction relief until his criminal conviction is final. A criminal conviction is final after the defendant's appeal has been denied or after the time for filing an appeal has passed. Although Missouri law provides for other forms of postconviction relief (for example habeas corpus, motion to vacate guilty plea, DNA testing), this guide will address only Missouri Supreme Court Rules 24.035 (postconviction motion for conivction after guilty plea) and 29.15 (postconviction motion for convcition after jury trial).


Both rules allow a defendant to challenge a convictrion or sentence which violates the Missouri or federal Constitution. Constitutional claims usually will allege that either trial or appellate counsel provided ineffective assistance of counsel. Because the claims that can be raised on the appeal of a guilty plea are very limited, Rule 24.05 motion claims usually will allege that plea counsel gave advice that effected the voluntariness of the guilty plea. In a Rule 29.15 proceeding, movant will usually allege that trial counsel's performance was in some way deficient and that it had a prejudcial effect on the defendant's case. In addition, claims that the sentencing court was without jurisdiction to impose sentence or that the defendant's sentence was in excess of the law can be raised under both rules.


A postconviction motion must be filed in the county circuit court where the defendant was tried or entered a guilty plea. The deadline for filing a motion depends upon whether the defendant appealed his sentence and conviction. If there was an appeal, the motion is due 90 days after the apellate court issues what is called its mandate (this means the appeal is considered final). If no appeal, then the defendant must file the motion within 180 days of being delievered to the Missouri Department of Corrections. These are strict time limits and a defendant's failure to file within them generally will bar relief. Also, these rules provide for no "prison mailbox rule," in other words, the motion is not considered filed until it is received by the court and not from the date of mailing.


When a circuit court receives the motion, it is filed as a civil case and assigned to the judge who presided over the defendant's trial or guilty plea. Postconviction motions are usually filed by the defendant without counsel, which is referred to porceeding pro se. If the motion is filed pro se and the movant (previously the defendant) is without money, the motion court (previously the trial court) will appoint counsel. Whether movant retains counsel or is appointed counsel, counsel will have up to 90 days to file an amended motion. Counsel may also elect not to file an amended motion but must notify the movant before doing so and file such notice with the court. All claims must be included in the amended motion. The postconviction rules provide for the filing of only one amended motion.

Once the amended motion is filed, the court will determine whether an evidentiary hearing is necessary. The motion court does not have to grant a hearing if the claims raised in the amended motion are refuted by the record or are without merit. If the court grants an evidentiary hearing, the movant must call witnesses and present evidence to support his claims. If the movant fails to present evidence as to a claim. he has effectively abandoned that claim and no further review is necessary. The movant may or may not attend the evidentiary hearing depending on the motion court's decision. Some courts will "writ in" (order that the movant be present) to testify and some will order that the movant's deposition be taken for admittance at the hearing. The testimony of other witnesses can also be taken by deposition.

Regardless as to whether an evidentiary hearing is held or not, the motion court will make a decision and enter "Findings of Fact and Conclusions of Law" with its order and judgment. Sometimes the court will allow both parties to submit proposed "Findings of Fact and Conclusions of Law" to aid the court in making a decision. If the court has already decided to grant or deny the amended motion, however, the court sometimes will have the prevailing party draft the proposed findings and conclusions. Finally, the losing party can appeal an adverse decision. Because a postconviction motion is a civil action, the judgment is not final for 30 days (the motion court retains jurisdiction duirng this period for post judgment pleadings). Upon the expiration of the 30 days, the losing party will have 10 days to file a notice of appeal.


If a defendant has the financial means to retain postconviction counsel, it is important that he or she does so early in the process because of the short time limits for filing an amended motion. Also, if retaining counsel, it is important to retain someone with postconviction relief experience. If a defendant will initially proceed pro se, he or she must file the motion within the time requried or potentially lose any remedy. If the defendant does not have the means to hire counsel, the court will appoint counsel.

Additional resources provided by the author

The Missouri postconviction rules can be found on the Missouri courts' website.

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