Summary
In Harrell v. State, 775 S.W.2d 228 (Mo.App. 1989), we ruled that a post-conviction motion is deemed filed when it is lodged in the court clerk's office not when the motion is mailed.
Summary of this case from Williams v. StateOpinion
No. 55389.
June 20, 1989. Motion for Rehearing and/or Transfer to Supreme Court Denied August 1, 1989. Application to Transfer Denied September 12, 1989.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, KENNETH M. WEINSTOCK, J.
Lucy G. Liggett, Asst. Public Defender, Clayton, for appellant.
William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.
Movant appeals the denial of his Rule 29.15 motion as untimely filed. We affirm.
Movant's September 30, 1981, jury convictions for three counts of Robbery First Degree and three concurrent twenty-five year prison sentences were affirmed on appeal. State v. Harrell, 654 S.W.2d 214 (Mo.App. 1983). Movant filed his Rule 29.15 motion with the circuit court of St. Louis County on July 6, 1988. The motion court denied this motion on grounds it was untimely filed pursuant to Rule 29.15(m).
Movant first asserts his Rule 29.15 motion was filed on or before June 30, 1988, because movant contends he mailed his motion from the Eastern Missouri Correctional Center on June 30, 1988. Movant cites us to Houston v. Lack, 487 U.S. ___, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) for the proposition that the mailing of his motion constituted filing. We disagree.
Houston v. Lack involved the interpretation of when a notice of appeal is "filed" under Federal Rule of Appellate Procedure 4(a)(1), and is not controlling in this instance. Federal Rule 4(a)(1) is a general rule applicable to all appeals, to which the Supreme Court has created an exception for filing by prisoners acting pro se. In contrast, Rule 29.15 was promulgated by the Missouri Supreme Court specifically as a procedure for prisoners seeking vacation of their sentences. We conclude from a plain reading of the rule that movant's motion was not filed when mailed, but when it was lodged in the circuit court clerk's office, which was July 6, 1988. See State v. Johnson, 522 S.W.2d 106, 110[4] (Mo.App. 1975) (motion for new trial not filed when mailed, but when lodged in clerk's office). The denial of movant's motion as untimely was proper. The constitutionality of the time limits of Rule 29.15(m) was upheld in Day v. State, 770 S.W.2d 692 (Mo.banc, 1989).
Movant further asserts the denial of his motion was error because he was not advised by the court at sentencing of his rights to file for post-conviction relief under Rule 29.15 as required by Rule 29.07. Movant's claim is meritless. Movant was sentenced in 1981, prior to the promulgation of Rule 29.15 and the asserted provisions of Rule 29.07.
Judgment affirmed.
CRANDALL, P.J., and REINHARD, J., concur.