Kraft v. State

812 S.W.2d 544, 1991 Mo. App. LEXIS 181, 1991 WL 10792

Opinion

CRIST, Judge.

This is an appeal from the denial of a Rule 24.035 motion. Movant sought to vacate a conviction for driving while intoxicated, third offense, a Class D felony. We affirm.

Movant was sentenced to five years’ imprisonment on December 23,1988, “to commence on the 27th day of December, 1988.” Movant filed an untimely pro se Rule 24.-035 motion on May 11, 1989. Rule 24.-035(d) mandates that the motion be filed within ninety days after movant is delivered to the custody of the Department of Corrections.

Failure to file the pro se motion within the time provided by Rule 24.035(d) constituted a complete waiver of the right to proceed. The time limitations in Rule 24.-035 are both valid and mandatory. Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), cert. denied sub nom. Walker v. Missouri, — U.S. -, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989).

Judgment affirmed.

CRANDALL, C.J., and GARY M. GAERTNER, P.J., concur.