Opinion
No. 58640.
March 12, 1991. Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1991. Application to Transfer Denied June 11, 1991.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, ROBERT H. DIERKER, J.
Kathleen G. Green, St. Louis, for plaintiff/appellant.
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for defendant/respondent.
Movant appeals the denial of his Rule 24.035 motion for post-conviction relief.
On August 14, 1989, movant pled guilty to first degree murder and was sentenced to life imprisonment. He was delivered to the Department of Corrections on August 17, 1989.
Although movant claims he mailed a Rule 24.035 motion on September 19, 1989, the only motion found in the circuit clerk's office is one notarized January 2, 1990, and filed in the circuit clerk's office on January 5, 1990. A "post-conviction motion is deemed filed when it is lodged in the court clerk's office not when the motion is mailed." Williams v. State, 788 S.W.2d 795, 796 (Mo.App.E.D. 1990).
Rule 24.035(b) requires the motion to be filed within ninety days after the movant is delivered to the Department of Corrections. Defendant's time to file expired ninety days after August 17, 1989. His January 5, 1990, motion was time barred. Day v. State, 770 S.W.2d 692 (Mo. banc 1989).
The judgment of the motion court is affirmed in accordance with Rule 84.16(b).