Opinion
No. WD 61148
February 28, 2003
Appeal from the Circuit Court of Boone County, Honorable Clifford Eugene Hamilton, Jr., Judge.
Mark Allen Grothoff, State Public Defender, Columbia, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Jefferson City, MO, for Respondent, Shaun Mackelprang, Asst. Attorney General, Jefferson City, MO, joins on the briefs.
Before Edwin H. Smith, P.J., James M. Smart, Jr., and Lisa White Hardwick, JJ.
Mark Dougan appeals the motion court's dismissal of his Rule 29.15 motion for post-conviction relief. The court dismissed the motion because Dougan "has never been incarcerated in [the Department of Corrections]." Dougan contends the trial court erred in granting the dismissal.
Factual and Procedural Background
After a jury trial, Dougan was convicted of tampering with a motor vehicle in the first degree, in violation of Section 569.080.1(2), RSMo 2000, a class C felony. On March 19, 2001, the court fined Dougan $5,000.00 on that conviction, suspended $4,500.00 of that fine, and placed Dougan on supervised probation for five years. Dougan was also ordered to pay restitution and to complete community service and counseling.
Dougan filed a timely notice of appeal with this court on March 29, 2001. On November 16, 2001, Dougan moved to dismiss the appeal. This court issued its mandate dismissing Dougan's direct appeal four days later on November 20, 2001.
On January 23, 2002, Dougan filed a pro se Rule 29.15 motion to vacate, set aside, or correct his judgment or sentence. The State responded on February 8, 2002, by filing a motion to dismiss on the grounds that (1) "Rule 29.15 requires that if no appeal is taken of a conviction[,] the motion to correct the conviction must be taken after the person is delivered to the Department of Corrections"; and (2) "Movant has never been incarcerated in the Department of Corrections [in this] case . . . for the crime of tampering." On February 15, 2002, Dougan filed his response to the State's motion to dismiss.
The motion court dismissed Dougan's Rule 29.15 motion on February 25, 2002, based upon the fact that Dougan "has never been incarcerated in DOC[.]" Dougan filed a notice of appeal with this court on March 6, 2002, contesting the motion court's dismissal of his PCR motion.
In his sole point on appeal, Dougan asserts that the trial court's dismissal of his Rule 29.15 motion was in error because he timely filed his notice of appeal with this court and his Rule 29.15 motion was timely filed sixty-four days after this court issued its mandate dismissing the direct appeal. Dougan interprets the motion court's dismissal to mean that, because he was not incarcerated on the conviction and because the direct appeal was dismissed, his Rule 29.15 motion was filed out of time. Another possible interpretation, however, is that the court believed that Dougan lacks standing to file a 29.15 motion because such post-conviction collateral remedy is available only to those faced with a sentence that includes incarceration. Because we are required to examine our own jurisdiction, we will sua sponte consider the issue of standing.
Standing
Generally, appellate review of the motion court's action on a Rule 29.15 motion "shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 29.15(k). Where, however, the issue is one of jurisdiction (such as issues of standing and timeliness of filing), the issue is purely one of law.
In Gideon v. Wainwright, 372 U.S. 335 (1963), the United States Supreme Court determined that the Sixth Amendment right to counsel is applicable to the states via the Fourteenth Amendment. The court held the right to counsel is guaranteed to those facing felony charges, which, by definition, include a possible sentence of incarceration. The right of an indigent accused to have counsel provided free of charge is held to apply only where the accused is sentenced to imprisonment. "[I]t is actual imprisonment, rather than . . . the actual imposition of a fine, that is the line defining the federal constitutional right to appointment of counsel." 21A Am Jur 2d Criminal Law § 1197. See Nichols v. United States, 511 U.S. 738 (1994).
In this case, the accused had counsel provided because he was indigent. He was sentenced to a fine, with part of the fine suspended. His sentence did not include incarceration. He now wishes to challenge the effectiveness of his counsel's services. Rule 29.15 exists as an avenue for prisoners to challenge the effectiveness of counsel. It is a substitute for the writ of habeas corpus. State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo.banc 2001). Habeas corpus is a remedy available only to those being illegally confined. Id. at 213. Section 2255 of 28 U.S.C. (the federal statute providing post-conviction relief) and Missouri's former Rule 27.26 and current Rules 29.15 and 24.035 were based on, and adopted as substitutes for, the writ of habeas corpus. It was noted in 1958 that Missouri's Rule 27.26 (the precursor to the current postconviction relief rules) "does not broaden the right of attack or scope of review beyond that permitted in habeas corpus proceedings." State v. Rutledge, 317 S.W.2d 365, 366 (Mo. 1958). Rules 24.035 and 29.15 (effective Jan. 1, 1988), which imposed time limits for the filing of motions, were adopted in place of Rule 27.26, which had no time limit, in order to avoid delays in the processing of prisoners' claims and to prevent the litigation of stale claims. Sloan v. State, 779 S.W.2d 580, 581 (Mo.banc 1989).
Rule 27.26 used the term "in custody under sentence" in describing the conditions under which the motion may be filed. See Rutledge, 317 S.W.2d at 366. When a movant was not confined in Missouri, the rule did not contemplate the filing of the motion until the defendant was in the actual custody of Missouri under a Missouri sentence. Lalla v. State, 463 S.W.2d 797, 801 (Mo. 1971). We see no indication that Rules 29.15 and 24.035 were intended to create remedies which did not exist beyond those provided by the writ of habeas corpus.
In this case, the defendant received a sentence of a fine of $5,000.00. The court suspended execution of $4,500.00 of that fine and placed Dougan on supervised probation. Dougan is not now incarcerated. (Nor does he even face a threat of incarceration in connection with the judgment he wishes to attack.) Accordingly, we conclude that he lacks standing to appeal the dismissal of his post-conviction motion. The appeal is dismissed.
Smith and Hardwick, JJ., concur.