Davis v. Kempker, WD 64237.

• Decision Date: 02 August 2005
• Docket Number: No. WD 64237.,WD 64237.
• Parties: Michael A. DAVIS, Appellant Pro Se, v. Gary B. KEMPKER, Respondent.
• Court: Missouri Supreme Court

167 S.W.3d 721

Michael A. DAVIS, Appellant Pro Se, v. Gary B. KEMPKER, Respondent.

No. WD 64237.

Missouri Court of Appeals, Western District.

June 21, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 2, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael A. Davis, Cameron, pro se.

Matthew Briesacher, Assistant Attorney General, Jefferson City, MO, for respondent.

Before ROBERT G. ULRICH, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.

JOSEPH M. ELLIS, Judge.

Michael Davis is a prisoner in the Missouri Department of Corrections (MDOC). Following his conviction for offenses occurring in 1989, Davis began his incarceration in June 1991. The MDOC staff initially classified him as a level 5 offender, assigning him to a level 5 correctional center. In January and February of 1999, the MDOC staff recommended Davis' transfer from a level 5 correctional center to a level 4 facility and reclassified Davis' custody score to a level 4. Pursuant to this reclassification, MDOC transferred Davis from a level 5 institution to a level 4 institution, Moberly Correctional Center.

On January 1, 2003, MDOC revised its classification policies. Under the new classification system, Davis' classification score was reclassified from a level 4 to 5. However, MDOC created a "Reclassification Grandfather Clause," allowing offenders with "exceptional institutional adjustment" the opportunity to be placed at a correctional center consistent with the offender's previous classification. Under this grandfather provision, Davis is eligible to be reclassified from a level 5 to a level 4 offender. The new classification policies also reclassified Moberly Correctional Center from a level 4 correctional center to a level 3.

Davis filed a "Petition to Proceed In Forma Pauperis" pursuant to § 506.366¹ on January 23, 2004, with the Circuit Court of Randolph County. On February 4, 2004, the circuit court granted this petition, granting him leave to proceed in forma pauperis, according to the provisions of the Prisoner Litigation Reform Act (PLRA).

On February 20, 2004, Davis filed a "Petition for Declaratory and Injunctive Relief," seeking a declaration that the revised MDOC classification policies were unconstitutional and requesting injunctive relief to prevent MDOC from applying the new classification provisions to Davis. On April 13, 2004, Gary Kempker (Respondent), Director of MDOC, filed his answer to Davis' petition. In his answer, Respondent claimed, among other affirmative defenses, that venue was not proper in the Circuit Court of Randolph County and that Davis failed to state a claim upon which relief may be granted. Respondent, contemporaneously with his answer, filed a "Motion for Judgment on the Pleadings," asking the court to dismiss the case for failure to state a claim upon which relief can be granted pursuant to Rule 55.27(a).

On April 21, 2004, the circuit court granted Respondent's motion for judgment on the pleadings. Davis filed his "Petitioner's Motion For Relief From Judgment or Order and Petitioner's Motion for Change of Venue" on May 3, 2004, which the court denied on May 4, 2004. In his motion, Davis asked the court to set aside its judgment or order, and he requested the court enter an order transferring the cause to the Circuit Court of Cole County. He stated that, in response to Respondent's motion to dismiss, he "must agree with the respondent that `Venue is not proper with this Court.'" Davis appeals.

Initially, we must address Respondent's claim that this court lacks jurisdiction over this appeal. Respondent claims that Davis failed to timely file his notice of appeal, and, therefore, this Court lacks jurisdiction. For the following reasons, we determine that this Court has jurisdiction to hear this cause.

On April 21, 2004, the Circuit Court of Randolph County denied Davis' motion for declaratory and injunctive relief. Davis filed a timely motion for relief from the judgment on May 3, 2004, which the court denied on May 4, 2004. The circuit court date stamped Davis' notice of appeal as received on June 1, 2004, and it formally filed his notice of appeal on June 3, 2004.

Pursuant to Rule 81.04(a), a notice of appeal must be filed no later than ten days after the judgment or order appealed from becomes final. Rule 81.05(a)(1) provides that, if no timely authorized after-trial motion is filed, a judgment or order becomes final thirty days after its entry. If, as in the present case, a party files a timely and authorized after-trial motion, the judgment becomes final at the date of the last motion's ruling or thirty days after the entry of judgment, whichever date is later. Rule 81.05(a)(2)(B).

Respondent argues that Davis' notice of appeal was due no later than May 21, 2004, thirty days after the circuit court's entry of judgment, pursuant to Rule 81.05(a)(2)(B). Respondent claims that Davis filed his notice of appeal on June 3, 2004, and, therefore, this Court lacks jurisdiction. Davis points out that he filed a motion for relief from the judgment on May 3, 2004. The circuit court denied this motion on May 4, 2004. Rule 81.05(a)(2)(B) states that the judgment becomes final on "the date of ruling of the last motion to be ruled or thirty days after the entry of judgment, whichever is later." (emphasis added). The date of the ruling of the last motion in the present case is May 4, 2004, the date the circuit court denied Davis' motion for relief from the judgment. Applying Rule 81.05(a)(2)(B), we compare the "date of ruling of the last motion," here May 4, 2004, with the date "thirty days after the entry of judgment," here May 21, 2004, and use "whichever is later" as the date "the judgment becomes final." May 21, 2004 is the later date, so the judgment became final on May 21, 2004.

Rule 81.04(a) specifies that "the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final." Applying this rule, the notice of appeal was required to have been filed by May 31, 2004. However, as Davis correctly argues, Rule 44.01(a) states the rule for computing the time prescribed by the Missouri Court Rules, including a description of the computation of the last day of the designated time period:

The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday.

We take judicial notice of the fact that Monday, May 31, 2004, was a legal holiday, Memorial Day, which falls on the last Monday in the month of May.²

Applying Rule 44.01(a), the last day of the prescribed time period fell on a legal holiday, so the time period for Davis to file his notice of appeal ran until the next day, Tuesday, June 1, 2004. Davis mailed his notice of appeal and his motion to proceed on appeal in forma pauperis on May 27, 2004. The record reflects that the Circuit Court of Randolph County received Davis' notice of appeal on June 1, 2004, as evidenced by a date stamp on his notice of appeal from the court clerk. Davis' motion to proceed in forma pauperis was also received by the Circuit Court on June 1, 2004.

While the court received Davis' notice of appeal on June 1, 2004, the last day for Davis to timely file his notice of appeal, it did not formally file the notice of appeal until June 3, 2004, after the court granted his motion to proceed in forma pauperis.

Davis argues that he timely presented his notice of appeal to the circuit court for filing, because the circuit court received his notice of appeal the last day his notice could be timely filed. As the Missouri Supreme Court explained in Labrier v. Anheuser Ford, Inc.:

The filing is the actual delivery of the paper to the clerk without regard to any action that he may take thereon. Thus, it may be said to be the general rule that the deposit or lodgment of the instrument for filing, in the proper office and its acceptance for that purpose by the proper officer constitutes a filing within the meaning of the law. A paper or document is said to be filed when it is delivered to the proper officer and lodged by him in his office.

621 S.W.2d 51, 54 (Mo. banc 1981) (internal quotations and citations omitted). However, Rule 81.04(c) expressly provides that a trial court clerk shall not accept or file a notice of appeal unless one of three conditions is met: (1) the docket fee is deposited with the trial court clerk; "(2) [t]he appellant is not required by law to pay the docket fee; or (3)[a]n order permitting the appellant to prosecute the appeal in forma pauperis accompanies the notice of appeal." In this case, Davis did not pay the docket fee, a docket fee was required, and he did not have an order from the court permitting him to proceed in forma pauperis as of June 1, 2004. The court received his petition to proceed in forma pauperis on June 1, 2004, the last day for him to timely file his notice of appeal, but the court order granting his petition to proceed in forma pauperis is dated June 3, 2004, two days after the specified time limit to file a notice of appeal.

Although a notice of appeal typically will not be considered filed until the docket fees are paid, an exception applies "when an appellant has done `all he could do' by timely tendering his notice of appeal and request to file as a poor person.'" State v. Lawrence, 139 S.W.3d 573, 575 (Mo.App. E.D.2004) (quoting State v. Mitchell, 128 S.W.3d 518, 520 (Mo.App.2003)).

In such instances, the timeliness of the notice of appeal will not be defeated simply because the court does not grant the in forma pauperis motion within the time for filing the appeal. In these circumstances, the granting of leave to appeal in forma pauperis causes the filing date for the notice of appeal to relate back to the date on which it was first tendered for filing.

Id. (...