Opinion
No. ED 75875.
November 30, 1999.
APPEAL FROM CIRCUIT COURT OF THE CITY OF ST. LOUIS, JOAN M. BURGER, J.
Jennifer S. Walsh, Asst. Public Defender, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for respondent.
Robert Fedrick (Movant) appeals from the circuit court's dismissal of his Rule 29.15 motion for post-conviction relief. We reverse and remand.
After a trial, a jury convicted Movant of two counts of first degree robbery in violation of section 569.020, RSMo 1994. The trial court sentenced Movant to two concurrent terms of twenty years' imprisonment. Movant appealed his convictions and this Court affirmed them on direct appeal in State v. Fedrick, 972 S.W.2d 656 (Mo.App.E.D. 1998). We issued the mandate in Movant's direct appeal on August 27, 1998. On November 5, 1998, Movant filed a pro se motion under Rule 29.15 for post-conviction relief. The motion court summarily dismissed Movant's motion, concluding it was filed out of time. Movant now appeals.
In Point I, Movant contends that the motion court clearly erred in dismissing his Rule 29.15 motion as untimely because the motion was filed on time. The State concedes that the motion was timely and joins with the Movant in requesting that the judgment be reversed and the cause remanded to the motion court for further proceedings.
Rule 29.15(b) states: "If an appeal of the judgment sought to be vacated, set aside or corrected was taken, the motion shall be filed within ninety days after the date the mandate of the appellate court is issued." Here, this Court issued the mandate in Movant's direct appeal on August 27, 1998. Movant's pro se motion was filed on November 5, 1998, within 90 days. Therefore, the motion court clearly erred in dismissing Movant's motion as untimely.
We grant Movant's first point, which renders his second point on appeal moot. We reverse the motion court's judgment and remand for further proceedings consistent with the requirements of Rule 29.15.
Reversed and remanded.