Day v. State, s. 71357
| Decision Date | 16 May 1989 |
| Docket Number | 71360,71444,71359,71474,71358,71443,Nos. 71357,s. 71357 |
| Citation | 770 S.W.2d 692 |
| Parties | Otis DAY, Appellant, v. STATE of Missouri, Respondent. Andrew Lloyd TURNER, Appellant, v. STATE of Missouri, Respondent. Rodney McKOWN, Appellant, v. STATE of Missouri, Respondent. Andrew GLASS, Jr., Appellant, v. STATE of Missouri, Respondent. Jacob L. GRAY, Donald R. Wade, Neal E. Houston, Bernard Jackson, Appellants, v. STATE of Missouri, Respondent. Lovell WALKER, Appellant, v. STATE of Missouri, Respondent. Lorenzo BARNES, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
Dorothy M. Hirzy, Sp. Public Defender, Henry B. Robertson, Asst. Public Defender, St. Louis, Sean D. O'Brien, Public Defenders, David S. Durbin, Lise Koenig, Asst. Public Defenders, Joseph H. Locascio, Sp. Public Defender, Kimberly K. Kellogg, Mark R. Bollinger, Asst. Sp. Public Defenders, Kansas City, for appellants.
William L. Webster, Atty. Gen., Breck K. Burgess, Elizabeth L. Ziegler, Asst. Attys. Gen., Jefferson City, for respondent.
Consolidated post-conviction proceedings in which movants appeal the dismissal of their Rule 24.035 and Rule 29.15 motions because they were not timely filed. Affirmed.
Missouri was one of the first states to adopt a special procedure for post-conviction review. Former Rule 27.26, patterned after federal law, was adopted by this Court in 1952 and provided a means for state prisoners to challenge the validity of their conviction or sentence. Rule 27.26 was adopted by this Court even though there is no federal constitutional requirement that a state provide a means of post-conviction review. Williams v. State of Missouri, 640 F.2d 140, 143 (8th Cir.), cert. denied, 451 U.S. 990, 101 S.Ct. 2328, 68 L.Ed.2d 849 (1981).
Under Rule 27.26, a motion to vacate, set aside, or correct a judgment or sentence could be filed at any time. Over the years the number of Rule 27.26 motions filed skyrocketed and significant delays developed in processing prisoner's claims. Many of these claims were filed years after conviction. 1 To avoid these delays and to prevent the litigation of stale claims, this Court, upon the recommendation of a special committee, repealed Rule 27.26, and adopted in its stead Rules 24.035 and 29.15. These rules, effective January 1, 1988, were designed to correct the problems which developed under Rule 27.26. Rule 24.035 provides a procedure for challenging a conviction based on a guilty plea. Rule 29.15 provides a means for challenging a conviction after trial. Both rules limit the time in which an action for post-conviction review may be filed. These time limitations are the subject of this appeal.
Rule 24.035 reads in pertinent part:
RULE 24.035--CONVICTION AFTER GUILTY PLEA--CORRECTION
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(b) A person seeking relief pursuant to this Rule 24.035 shall file a motion to vacate, set aside or correct the judgment or sentence.... The motion shall be filed within ninety days after the movant is delivered to the custody of the department of corrections. Failure to file a motion within the time provided by this Rule 24.035 shall constitute a complete waiver of any right to proceed under this Rule 24.035.
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(e) When an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant. Counsel shall ascertain whether sufficient facts supporting the grounds are asserted in the motion and whether the movant has included all grounds known to him as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all grounds known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and grounds....
(f) Any amended motion shall be verified by movant and shall be filed within thirty days of the date counsel is appointed or the entry of appearance by counsel that is not appointed. The court may extend the time for filing the amended motion for one additional period not to exceed thirty days....
(g) A request for a hearing shall be made by motion on or before the date an amended motion is required to be filed.... If no request for hearing is timely filed ... a hearing shall not be held....
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(l ) This Rule 24.035 shall apply to all proceedings wherein sentence is pronounced on or after January 1, 1988. If sentence is pronounced prior to January 1, 1988, and no prior motion has been filed pursuant to Rule 27.26, a motion under this Rule 24.035 may be filed on or before June 30, 1988. Failure to file a motion on or before June 30, 1988, shall constitute a complete waiver of the right to proceed under this Rule 24.035....
Similar time limitations are found in Rule 29.15. These provisions are set forth as follows:
RULE 29.15--CONVICTION AFTER TRIAL--CORRECTION
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(b) A person seeking relief pursuant to this Rule 29.15 shall file a motion to vacate, set aside or correct the judgment or sentence .... If an appeal of the judgment sought to be vacated, set aside or corrected was taken, the motion shall be filed within thirty days after the filing of the transcript in the appeal pursuant to Rule 30.04. If no appeal of such judgment was taken, the motion shall be filed within ninety days of the date the person is delivered to the custody of the department of corrections.... Failure to file a motion within the time provided by this Rule 29.15 shall constitute a complete waiver of any right to proceed under this Rule 29.15.
* * * * * *
(e) When an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant. Counsel shall ascertain whether sufficient facts supporting the grounds are asserted in the motion and whether the movant has included all grounds known to him as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all grounds known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and grounds....
(f) Any amended motion shall be verified by movant and shall be filed within thirty days of the date counsel is appointed or the entry of appearance by counsel that is not appointed. The court may extend the time for filing the amended motion for one additional period not to exceed thirty days....
(g) A request for a hearing shall be made by motion on or before the date an amended motion is required to be filed.... If no request for hearing is timely filed ... a hearing shall not be held....
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(m) This Rule 29.15 shall apply to all proceedings wherein sentence is pronounced on or after January 1, 1988. If sentence is pronounced prior to January 1, 1988, and no motion has been filed pursuant to Rule 27.26, a motion under this Rule 29.15 may be filed on or before June 30, 1988. Failure to file a motion on or before June 30, 1988, shall constitute a complete waiver of the right to proceed under this Rule 29.15....
Movants Andrew Lloyd Turner, Rodney McKown, Otis Leonard Day, Andrew Glass, Jr., and Bernard Jackson pled guilty to crimes and were sentenced prior to January 1, 1988. None of the movants filed for post-conviction relief under Rule 27.26. Each movant filed a pro se motion under Rule 24.035 after June 30, 1988. Turner, McKown, Day and Jackson filed on July 1, 1988. Glass filed on July 11, 1988. In each case the motion court ruled the motion was not timely filed under Rule 24.035(l ) and the failure to file on or before June 30, 1988, constituted a complete waiver of the right to proceed.
Movant Lovell Walker pled guilty to a felony on July 31, 1985, and was sentenced to five years imprisonment on October 19, 1985. His sentence was suspended and he was placed on probation for five years. Probation was revoked and the original sentence ordered executed on April 15, 1988. Walker was delivered to the custody of the Fulton Reception and Diagnostic Center on April 22, 1988. He filed a motion for post-conviction relief under Rule 24.035 on July 26, 1988. The court dismissed the motion without a hearing on the ground it was not filed on or before June 30, 1988. Rule 24.035(l ). In overruling movant's motion to reconsider the court also found the post-conviction motion was not timely filed under Rule 24.035(b) because it was not filed on or before July 21, 1988, 90 days from the date of movant's incarceration.
Movants Jacob L. Gray, Donald Wade and Neal E. Houston were convicted of crimes and sentenced prior to January 1, 1988. No motions for post-conviction relief were filed under Rule 27.26. Each movant filed a pro se motion under Rule 29.15 after June 30, 1988. Wade and Houston filed their motions on July 1, 1988. Gray filed on July 18, 1988. In each case the court dismissed the motion because not timely filed under Rule 29.15(m). Each court found the failure to file on or before June 30, 1988 constituted a complete waiver of the right to proceed under Rule 29.15.
Movant Lorenzo Barnes was convicted by a jury of narcotic violations. He timely filed a pro se motion for relief under Rule 29.15 on February 9, 1988. On February 24, 1988, the court appointed counsel. On April 29, 1988, counsel presented an amended motion, request for hearing, and motion to file the amended pleading out of time. The amended motion was not verified. The court denied the request for hearing as untimely pursuant to Rule 29.15(g), and denied the motion for leave to file an amended motion out of time pursuant to Rule 29.15(f). The court also dismissed the original pro se motion with prejudice for failure to state a cause of action.
The time limitations contained in Rules 24.035 and 29.15 are valid and mandatory. States have substantial discretion to develop and implement programs for prisoners seeking post-conviction review. Pennsylvania v. Finley, 481 U.S. 551, 559, 107 S.Ct. 1990, 1995, 95 L.Ed.2d 539 (1987). A state may erect reasonable...
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