O'Rourke v. State

• Decision Date: 16 January 1990
• Docket Number: No. WD,WD
• Citation: 782 S.W.2d 808
• Parties: Roger D. O'ROURKE, Appellant, v. STATE of Missouri, Respondent. 41832.
• Court: Missouri Court of Appeals

Page 808

782 S.W.2d 808

Roger D. O'ROURKE, Appellant, v. STATE of Missouri, Respondent.

No. WD 41832.

Missouri Court of Appeals Western District.

Jan. 16, 1990.

Joel R. Elmer, Asst. Public Defender, Columbia, for appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

Before LOWENSTEIN, P.J., and KENNEDY and GAITAN, JJ.

PER CURIAM:

This is an appeal from the dismissal of appellant's Rule 24.035 motion for post-conviction relief. The appellant contends that the motion court erred in ruling that his motion was untimely filed, and he claims that the time limits imposed by the Rule are unconstitutional because they make no allowances for late filing.

The judgment is affirmed.

On March 9, 1987, the appellant pled guilty to one count of sexual assault in the first degree, § 566.040, RSMo 1986, and to one count of escape from custody, § 575.200, RSMo 1986. Pursuant to a plea agreement, he was sentenced to two concurrent ten-year terms of imprisonment.

On January 31, 1989, appellant filed a pro se Rule 24.035 motion for post-conviction relief, alleging ineffective assistance of counsel. The state filed a motion to dismiss, claiming that appellant's motion was untimely filed under Rule 24.035(l ) because it was filed after June 30, 1988.

At the hearing on the state's motion to dismiss, the appellant testified that he had originally attempted to file his Rule 24.035 motion prior to the June 30, 1988 deadline. O'Rourke claimed that, during the first two weeks of June, 1988, he put his Rule 24.035 motion in a stamped envelope and left it with an employee in the prison mailroom. He stated that he did not use certified or registered mail because he could not afford the additional postage.

The appellant testified that, after he left his motion in the prison mailroom, he waited six months for some reply from the court. He then wrote the court and asked what had become of his motion, and he was then informed that his motion had never been received by the Circuit Clerk's office. In January of 1989, he filed the present Rule 24.035 motion.

Mary Brundige, a case worker at the Missouri Eastern Correctional Center, testified at the hearing on behalf of appellant. Ms. Brundige stated that, on June 3, 1988 she notarized an in forma pauperis document for appellant, which was executed to the Circuit Court of Callaway County. Ms. Brundige also stated that, on June 6, 1988, she notarized a second document for appellant, but her notary records did not identify what type of document she notarized for appellant on that later date.

On March 28, 1989, the motion court sustained the state's motion to dismiss. In its order, the court stated there was "no credible evidence that Movant executed and deposited for mailing a 24.035 motion prior to June 30, 1988."

In his sole point on appeal, appellant contends the motion court erred in dismissing his motion as untimely filed. Instead, he argues the court should have deemed his motion to have been filed at the time that he delivered it to prison authorities for mailing in June of 1988.

In support of his contention, the appellant cites Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Houston v. Lack held that, under Rule 4(a)(1) of the Federal Rules of Appellate Procedure, a pro se defendant who is incarcerated in a federal prison "files" his notice of appeal when he delivers it to the prison authorities for forwarding to the federal court. The appellant asserts that the same rule should be applied to the post-conviction motion in the case at bar.

An identical argument was recently made in two cases from other jurisdictions: Carr v. State, 554 A.2d 778 (Del.1989), and Key v. State, 297 Ark. 111, 759 S.W.2d 567 (1988). In both of these cases, an inmate attempted to apply the rule of Houston v. Lack to state's procedure for post-conviction relief. However, in both instances, the court refused to accept Houston v. Lack as controlling or persuasive precedent. In Key v. State, the Arkansas Supreme Court refused to follow Houston v. Lack, noting that "that case was no more than an interpretation of Federal Rules of Appellate Procedure 4(a)(1) which is inapplicable in this case." 759 S.W.2d at 568. And, in Carr v. State, the Delaware Supreme Court stated that Houston v. Lack

did not establish as a constitutional requirement that there must be a prison mailbox rule. Instead, the Supreme Court merely interpreted the procedure provided for in the Federal Rules of Appellate Procedure. Thus, the case of Houston v. Lack does not compel this court to abandon its own precedent.

554 A.2d at 779.

Likewise, this court concludes Houston v. Lack does not compel abandonment of the express terms of Rule 24.035. Rule 24.035(c) specifies that a motion for post-conviction relief is to be filed with the clerk of the trial court....