Trice v. State, WD

CourtCourt of Appeal of Missouri (US)
Citation792 S.W.2d 672
Docket NumberNo. WD,WD
PartiesMark Anthony TRICE, Appellant, v. STATE of Missouri, Respondent. 42216.
Decision Date10 July 1990

Peggy Hardge-Harris, St. Louis, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

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

GAITAN, Judge.

Movant, Mark Anthony Trice, appeals the denial of his Rule 29.15 motion following an evidentiary hearing. The movant alleges that his claim of ineffective assistance of counsel entitled him to relief.

After trial by jury in December of 1986, the movant was found guilty of two counts of involuntary manslaughter, in violation of Mo.Rev.Stat. § 565.024.1(2)(1986), and one count of assault in the second degree, in violation of Mo.Rev.Stat. § 565.060.1(4) (1986). On January 15, 1987, movant was sentenced to consecutive terms of seven years for each count of involuntary manslaughter, and a sentence of six years imprisonment for assault in the second degree. This Court affirmed the movant's convictions and sentences on direct appeal. State v. Trice, 747 S.W.2d 243 (Mo.App.1988).

On November 11, 1985, movant drove a school bus for Parkway North High School in St. Louis County. While operating a school bus filled with student passengers, in an intoxicated condition, movant lost control of the vehicle and collided with a highway sign pole. The bus broke into three pieces. Two students died as a result of the accident and one student suffered serious injuries.

The movant's post-conviction motion pursuant to Rule 29.15 was received by the Clerk of the Boone County Circuit Court on June 30, 1988. The motion was accompanied by a request to proceed in forma pauperis, which was sustained by the trial court on July 1, 1988; the 29.15 motion was stamped filed on the same day. The motion court held an evidentiary hearing on January 28, 1989, and entered its order denying movant's motion on June 27, 1989.

Movant's appeal requires this Court to determine the timeliness of movant's motion. Rule 29.15(m) provides that a movant, sentenced prior to January 1, 1988, who has not sought relief under Rule 27.26, must file a Rule 29.15 motion on or before June 30, 1988. The time limitations in 29.15 are valid, reasonable and mandatory. Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). Failure to timely file the motion constitutes a complete waiver to proceed under the rule. Rule 29.15(b).

The state contends that whereas movant's motion was not accompanied with a filing fee, but rather with an in forma pauperis affidavit, that the motion could not be filed with the motion court until the request to proceed in forma pauperis was granted. Since the order was not entered until July 1, the state argues that the 29.15 motion was not timely filed and that therefore the motion court erred in considering the merits of the motion. We disagree.

Rule 29.15 provides a procedure for challenging a conviction after trial. Day v. State, 770 S.W.2d at 693. The rule is not a substitute for direct appeal and does not serve as a second appeal. Daniels v. State, 751 S.W.2d 399, 401 (Mo.App.1988). Rather the purpose of Rule 29.15 is to provide a separate action to review alleged violations of constitutional requirements or fundamental due process. The post-conviction action is an independent civil proceeding, not a criminal case, governed by the rules of civil procedure whenever applicable. Johns v. State, 741 S.W.2d 771, 778 (Mo.App.1987); Rule 29.15(a).

The state contends that a post-conviction motion under Rule 29.15 resembles the filing of a notice of appeal. We find such an analogy erroneous. Mo.Rev.Stat. § 512.050 (1986) and Rule 81.04(c) require that a docket fee must be paid at the time that the notice of appeal is filed. Rule 29.15 makes no such requirement. As a civil action, the collection of a docket fee in a post-conviction case is governed by Mo.Rev.Stat. § 483.530 (1986). Our state Supreme Court held in State ex rel. JCA Architects v. Schmidt, 751 S.W.2d 756, 757 (Mo. banc 1988), that while a fee is required under the statute, payment is not required at any particular time. Therefore, payment is not a jurisdictional requirement. Should the filing fee not be paid or waived, the court may impose sanctions or dismiss the action. Id. However, the petition is deemed filed without payment of the filing fee.

Further, we recognize that Mo.Rev.Stat. § 514.040 (1986) establishes a statutory scheme, wherein a trial court, in its discretion, may permit a plaintiff to prosecute his action as a poor person. In State ex rel. Coats v. Lewis, 689 S.W.2d 800, 806 (Mo.App.1985), this Court set forth the appropriate procedure for handling in forma pauperis motions. As we noted in Coats, a suit cannot be pending before a court until it has been filed. Id.; § 514.040. Therefore, we held that the court should allow the alleged indigent plaintiff to file his petition along with his motion to proceed as a poor person. The motion is provisionally filed subject to summary dismissal if the court determines the plaintiff not to be indigent and the petition may be subject to later dismissal if found to be patently and irreparably frivolous or malicious. Id.; see also Cooper v. Jones, 763 S.W.2d 386, 387 (Mo.App.1989); Nitcher v. Brown, 775 S.W.2d 330, 334 (Mo.App.1989). Thus under the dictates of Coats, the movant's 29.15 motion should have been considered filed when it was received in the office of the circuit clerk. We find that the movant's 29.15 motion was timely filed on June 30, 1988, and that the motion court had jurisdiction to consider the merits of the motion.

Turning to the movant's appeal, this Court's review is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Day v. State, 770 S.W.2d at 695. The motion court's findings and conclusions are clearly erroneous only if a review of the entire record leaves the appellate court with a definite and firm impression that a mistake has been made. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

To prevail on a claim of ineffective assistance of counsel, a Rule 29.15 movant must show that his attorney's performance fell below the standard of care and skill of a reasonably competent attorney rendering similar services under the existing circumstances, and that the movant was prejudiced by such deficient performance. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984); Seales v. State, 580 S.W.2d 733, 735 (Mo. banc 1979). In reviewing such claims the determination need not focus on whether the trial counsel's performance was deficient prior to examining the prejudice prong. Strickland v Washington, 466 U.S. at 689, 104 S.Ct. at 2065; Guinan v. State, 769 S.W.2d 427, 428 (Mo. banc 1989).

We note that movant has failed to file with this Court a transcript of the evidentiary hearing. It is the movant's responsibility to file the transcript and prepare a legal file so that the record on appeal contains all the evidence necessary for a determination of questions presented to the appellate court for review. Rule 81.12(a). The movant must present this Court with a record of the proceedings that includes all pertinent matters raised. Chamberlain v. State, 721 S.W.2d 139, 140 (Mo.App.1986); Rule 29.15(l ). When no transcript is filed, nothing is preserved for review. See A.W. Moore Roofing and General Construction, Inc. v. Sevier, 700 S.W.2d 93, 95 (Mo.App.1985). However we will ex gratia review movant's claim.

In his only point on appeal, movant Trice contends that the motion court erred in its finding of fact and conclusions of law in stating that movant's trial counsel had filed all applicable motions to suppress. Movant argues that while trial counsel sought to suppress blood samples taken from movant after the accident for medical purposes and pursuant to a valid search warrant, trial counsel asserted incorrect grounds. Movant argues that trial counsel should have sought to suppress the blood samples on the ground that the state failed to show that the analysis of the samples was performed in compliance with Mo.Rev.Stat. § 577.037 (1986), and that failure to file a motion to suppress on this ground constituted ineffective assistance of counsel.

The focus of movant's claim is that at the time of his trial in 1986, although § 577.037.4 required that chemical analysis of blood be performed "in accordance with methods and...

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6 cases
  • Lewis v. State, No. WD
    • United States
    • Missouri Court of Appeals
    • January 19, 1993
    ...deadline have been deemed timely filed even though the court ruled on the in forma pauperis motion after the deadline, Trice v. State, 792 S.W.2d 672, 674 (Mo.App.1990); even though the motion was mailed to the wrong district of the circuit court, and reached the proper district after the d......
  • Ziegler v. State, 16862
    • United States
    • Missouri Court of Appeals
    • October 10, 1990
    ...and that the movant was prejudiced by such deficient performance. Seales v. State, 580 S.W.2d 733, 735 (Mo. banc 1979); Trice v. State, 792 S.W.2d 672, 674 (Mo.App.1990). Movant claims that codefendant's statement to George Tucker was clearly inadmissible as to movant because it was hearsay......
  • Evans v. State
    • United States
    • Missouri Court of Appeals
    • February 8, 2002
    ...necessary for us to make determinations on the issues raised." Helmig, 42 S.W.3d at 670 (citation omitted); see also Trice v. State, 792 S.W.2d 672, 675 (Mo. App. 1990). Where the movant in a post-conviction motion proceeding fails to provide us with the necessary record on appeal to review......
  • Jameson v. State
    • United States
    • Missouri Court of Appeals
    • January 20, 2004
    ...(clerk improperly failed to lodge timely Rule 24.035 motion which was not accompanied by proper number of copies); Trice v. State, 792 S.W.2d 672 (Mo. App. W.D.1990) (clerk improperly refused to lodge timely Rule 29.15 motion not accompanied by a filing fee). As the Court held in Lewis, des......
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