547.035. Postconviction DNA testing for persons in the custody of the department — motion, contents — procedure. — 1. A person in the custody of the department of corrections claiming that forensic DNA testing will demonstrate the person's innocence of the crime for which the person is in custody may file a postconviction motion in the sentencing court seeking such testing. The procedure to be followed for such motions is governed by the rules of civil procedure insofar as applicable.
2. The motion must allege facts under oath demonstrating that:
(1) There is evidence upon which DNA testing can be conducted; and
(2) The evidence was secured in relation to the crime; and
(3) The evidence was not previously tested by the movant because:
(a) The technology for the testing was not reasonably available to the movant at the time of the trial;
(b) Neither the movant nor his or her trial counsel was aware of the existence of the evidence at the time of trial; or
(c) The evidence was otherwise unavailable to both the movant and movant's trial counsel at the time of trial; and
(4) Identity was an issue in the trial; and
(5) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing.
3. Movant shall file the motion and two copies thereof with the clerk of the sentencing court. The clerk shall file the motion in the original criminal case and shall immediately deliver a copy of the motion to the prosecutor.
4. The court shall issue to the prosecutor an order to show cause why the motion should not be granted unless:
(1) It appears from the motion that the movant is not entitled to relief; or
(2) The court finds that the files and records of the case conclusively show that the movant is not entitled to relief.
5. Upon the issuance of the order to show cause, the clerk shall notify the court reporter to prepare and file the transcript of the trial or the movant's guilty plea and sentencing hearing if the transcript has not been prepared or filed.
6. If the court finds that the motion and the files and records of the case conclusively show that the movant is not entitled to relief, a hearing shall not be held. If a hearing is ordered, counsel shall be appointed to represent the movant if the movant is indigent. The hearing shall be on the record. Movant need not be present at the hearing. The court may order that testimony of the movant shall be received by deposition. The movant shall have the burden of proving the allegations of the motion by a preponderance of the evidence.
7. The court shall order appropriate testing if the court finds:
(1) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing; and
(2) That movant is entitled to relief.
Such testing shall be conducted by a facility mutually agreed upon by the movant and by the state and approved by the court. If the parties are unable to agree, the court shall designate the testing facility. The court shall impose reasonable conditions on the testing to protect the state's interests in the integrity of the evidence and the testing process.
8. The court shall issue findings of fact and conclusions of law whether or not a hearing is held.
Notes of Decisions
Cited in
66
cases (
5 in the last 5 years), 2001–2026 · leading case:
Weeks v. State, 140 S.W.3d 39 (Mo. 2004).
Weeks v. State, 140 S.W.3d 39 (Mo. 2004).
· cites it 52× “In 2001, he filed a motion with the sentencing court under what is now section 547.035, RSMo Supp.2001, [1] claiming that DNA testing of the sperm samples taken in relation to the rape will demonstrate his innocence of the crimes of which he was convicted.”
Mercer v. State, 512 S.W.3d 748 (Mo. 2017).
· cites it 43× “Mercer filed a pro se motion for post-conviction DNA testing, pursuant to section 547.035, RSMo Supp. 2001, claiming DNA testing would prove his actual innocence.”
State v. Tyler, 103 S.W.3d 245 (Mo. Ct. App. 2003).
· cites it 27× “Melvin Leroy Tyler (Movant) appeals from the judgment denying his motion for postconviction DNA testing without the issuance of a show-cause order to the prosecutor or an evidentiary hearing pursuant to Section 547.035, RSMo Cum.Supp.2001. 1 The convictions sought to be vacated…”
Hudson v. State, 190 S.W.3d 434 (Mo. Ct. App. 2006).
· cites it 32× “Greggory Hudson appeals from the order of the circuit court overruling, without issuing a show cause order or conducting an evidentiary hearing, his post-conviction motion for DNA testing, as authorized by § 547.035. 1 In 1996, the appellant was convicted, after a jury trial in…”
State of Missouri v. Pete Wright, 499 S.W.3d 361 (Mo. Ct. App. 2016).
· cites it 20× “On April 25, 2011, Wright was granted post-conviction DNA testing pursuant section 547.035. 2 Wright’s counsel 3 and the State reached an agreement regarding the DNA testing, which was accepted by the court pursuant to an order issued on August 3, 2011.”
Belcher v. State, 299 S.W.3d 294 (Mo. 2009).
· cites it 12× “2 He thereafter sought post-conviction DNA testing under section 547.035. 3 No hearing was held. The motion court found that “the entire file and records of the case conclusively show that [Belcher] is not entitled to relief’ and denied relief.”
State of Missouri v. Ardell Fields, 517 S.W.3d 549 (Mo. Ct. App. 2016).
· cites it 14× “In his quest to be exonerated, Movant pursues post-conviction DNA testing, pursuant to Section 547.035. 1 Movant appeals from the motion court’s judgment, after an evidentiary hearing, denying his post-conviction motion for DNA testing.”
State v. Ruff, 256 S.W.3d 55 (Mo. 2008).
· cites it 11× “In an attempt to prove his innocence, he sought DNA testing pursuant to section 547.035, RSMo Supp.2001. Because the trial court incorrectly overruled Ruffs motion for testing without a hearing, the judgment is reversed and the case remanded.”
Lowe-Bey v. State, 272 S.W.3d 378 (Mo. Ct. App. 2008).
· cites it 17× “2007, 1 following DNA testing pursuant to Section 547.035. In 1988, Movant was convicted by a jury of forcible rape, Section 566.”
Clayton v. State, 164 S.W.3d 111 (Mo. Ct. App. 2005).
· cites it 18× “Specifically, Movant alleged that: (1) evidence collected in connection with the crimes for which he was convicted still existed; (2) that evidence was not previously tested because DNA technology was not in existence at the time of trial; (3) there is a reasonable probability…”
Mo. Rev. Stat. § 547.035(2): 1 case
State v. Tyler, 103 S.W.3d 245 (Mo. Ct. App. 2003).
“Melvin Leroy Tyler (Movant) appeals from the judgment denying his motion for postconviction DNA testing without the issuance of a show-cause order to the prosecutor or an evidentiary hearing pursuant to Section 547.035, RSMo Cum.Supp.2001. 1 The convictions sought to be vacated…”
Mo. Rev. Stat. § 547.035(2)(5): 1 case
Mo. Rev. Stat. § 547.035(3)(c): 1 case
Mo. Rev. Stat. § 547.035(4): 1 case
State v. Tyler, 103 S.W.3d 245 (Mo. Ct. App. 2003).
“Melvin Leroy Tyler (Movant) appeals from the judgment denying his motion for postconviction DNA testing without the issuance of a show-cause order to the prosecutor or an evidentiary hearing pursuant to Section 547.035, RSMo Cum.Supp.2001. 1 The convictions sought to be vacated…”
Mo. Rev. Stat. § 547.035(6): 1 case
State v. Tyler, 103 S.W.3d 245 (Mo. Ct. App. 2003).
“Melvin Leroy Tyler (Movant) appeals from the judgment denying his motion for postconviction DNA testing without the issuance of a show-cause order to the prosecutor or an evidentiary hearing pursuant to Section 547.035, RSMo Cum.Supp.2001. 1 The convictions sought to be vacated…”
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