Post-Conviction Relief Proceedings

A post-conviction motion is used to challenge a criminal conviction based on facts outside of the trial/plea record. The most common type of post-conviction claim involves the ineffective assistance of trial or plea counsel. Claims of ineffectiveness based upon appellate counsel may also be raised. If a defendant was convicted following a trial, a post-conviction motion will be filed under Rule 29.15. If a defendant pled guilty to the charges, the post-conviction motion will be filed under Rule 24.035.

Post-conviction claims may include claims of ineffective assistance of trial counsel in failing to investigate present exculpatory witness testimony, failing to object to an improper and prejudicial argument by the prosecution, and failing to effectively cross-examine the witnesses of the prosecution.

This process begins with the movant (the individual challenging the conviction) filing a timely pro se motion for post-conviction relief (also called a Form 40) in the trial/plea court which issued the judgment. The movant will then be appointed a public defender or will retain counsel for representation during this process. The attorney will then file an amended motion. Then, the prosecuting attorney will have the opportunity to respond.

The motion court may then hold an evidentiary hearing on some or all of the raised claims. At this hearing, the movant may present new evidence in support of their claims. If the claims is refuted by the record or meritless, the court may deny an evidentiary hearing. Regardless of whether an evidentiary hearing is held or not, the court will then issue findings of fact and conclusions of law on each of the movant’s claims. The unsuccessful party, may then appeal the motion court’s judgment to the court of appeals and the Supreme Court.

* There are strict timelines which govern these filings.