Opinion
No. ED 83190
May 25, 2004
Appeal from the Circuit Court of Cape Girardeau County, Hon. John P. Heisserer.
S. Kristina Starke, Assistant Appellate Defender, St. Louis, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Andrea Mazza Follett, Asst. Attorney General Jefferson City, MO, for Respondent.
Before Gary M. Gaertner, Sr., P.J. and Mary R. Russell, J., concur.
Darius Nicholson (Movant) appeals from the dismissal of a motion to vacate judgment and sentence under "Supreme Court Rule 29.15" Rule 29.15 in the Circuit Court of Cape Girardeau County. Movant sought to vacate his convictions for murder in the second degree, Section 565.021, RSMo 1994, armed criminal action, Section 571.015, RSMo 1994, and robbery in the first degree, Section 569.020, RSMo 1994, for which Movant was sentenced to concurrent terms of life imprisonment for murder, thirty years of imprisonment for armed criminal action, and thirty years of imprisonment for robbery in the Circuit Court of Cape Girardeau County. On appeal, Movant argues the motion court erred in dismissing his Rule 29.15 motion for postconviction relief as untimely. Because the motion was filed more than ninety days after the mandate was issued, and the motion court had no jurisdiction, we are without jurisdiction to consider the appeal. Appeal dismissed.
On September 3, 2002, we affirmed Movant's conviction and sentence.State v. Nicholson, 84 S.W.3d 491 (Mo.App.E.D. 2002). We issued our mandate on October 9, 2002. January 7, 2003 fell ninety days after October 9, 2002. On January 6, 2003, Movant filed his pro se motion for post-conviction relief in the Circuit Court of the City of St. Louis. On January 9, 2003, the pro se motion was filed in the Circuit Court of Cape Girardeau County. On May 16, 2003, Movant's counsel filed a motion to allow Movant to proceed with the post-conviction motion. In that motion, Movant acknowledged that the motion in his case had to have been filed by January 7, 2003. The State filed its opposition to the motion on May 19, 2003. On June 3, 2003, the motion court entered the following order and judgment:
Now on this 3rd day of June, 2003, the Court having reviewed the file and memorandum of counsel does find that the PCR motion filed by [Movant] on Jan. 9, 2003, with the clerk of the trial court was untimely filed and the failure to file said motion within 90 days of the Court of Appeals Mandate pursuant to Supreme Court Rule 24.035(b) [sic] deprives this court of jurisdiction to consider same. It is therefore ordered that [Movant's] motion be and is hereby dismissed with prejudice.
This appeal follows.
In his sole point, Movant argues the motion court clearly erred in dismissing his Rule 29.15 motion as untimely filed. According to Movant, because he filed his pro se motion in the Circuit Court of the City of St. Louis instead of the Circuit Court of Cape Girardeau County this should not render his otherwise timely filed motion untimely filed. We disagree.
Rule 29.15(a) states in pertinent part:
A person convicted of a felony after trial claiming that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States . . . that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of this Rule 29.15. This Rule 29.15 provides the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated. [Emphasis added.]
Rule 29.15(b) states, "[i]f an appeal of the judgment or sentence sought to be vacated, set aside or corrected was taken, the motion shall be filed within 90 days after the date of the mandate of the appellate court is issued affirming such judgment or sentence." These time limits are valid and mandatory. Searcy v. State, 103 S.W.3d 201, 204 (Mo.App.W.D. 2003) (citing Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989)). "Unnerstall v. State, 53 S.W.3d 589 (Mo.App.E.D. 2001)" Failure to file the motion within the prescribed time allotment constitutes a complete waiver to proceed under the rule. "Matchett v. State, 119 S.W.3d 558 (Mo.App.S.D. 2003)" Rule 29.15(b). An untimely motion deprives the circuit court of jurisdiction, and the circuit court must dismiss it. Matchett v. State, 119 S.W.3d 558, 559 (Mo.App.S.D. 2003). Moreover, "[a] post-conviction motion is considered filed when deposited with the circuit court clerk, not when it is mailed." "Thomas v. State, 31 S.W.3d 23, 25 (Mo.App.E.D. 2000)" Id.
Here, the motion court did not clearly err in dismissing Movant's pro se Rule 29.15 motion as untimely filed. Movant was sentenced in the Circuit Court of Cape Girardeau County. We issued our mandate on October 9, 2002. The record reflects that on January 6, 2003, Movant filed his pro se motion for post-conviction relief in the Circuit Court of the City of St. Louis. On January 9, 2003, the pro se motion was filed in the Circuit Court of Cape Girardeau County. Movant acknowledged that the motion needed to have been filed by January 7, 2003. Clearly, Movant failed to file his pro se motion in the sentencing court within the prescribed time limit. Accordingly, Movant waived his claim to proceed under Rule 29.15, and the Circuit Court of Cape Girardeau County was obliged to dismiss his motion.
Movant argues he placed his motion into the mail some time before January 7, 2003, and therefore mailed his motion by the prescribed deadline. However, the motion was sent to the wrong court, and by the time it reached the correct court, the ninety-day time limit had expired. To receive the benefit of Rule 29.15, Movant had to file his motion in the Circuit Court of Cape Girardeau County within ninety days of our mandate. In mailing the motion to the Circuit Court of the City of St. Louis, Movant failed to follow correct procedure.
We note that Missouri courts have rejected the "mailbox" rule for the purposes of Rule 29.15 motions. Garrison v. State, 11 S.W.3d 868, 869 (Mo.App.S.D. 2000) (citing O'Rourke v. State, 782 S.W.2d 808, 809 (Mo.App.W.D. 1990).
Even if Movant's mailing deficiency was somehow considered "excusable neglect," Rule 29.15 does not allow for an extension of time to cure such neglect. Matchett, 119 S.W.3d at 559.
Movant cites to "State v. Gibson, 812 S.W.2d 521 (Mo.App.E.D. 1991), a case factually similar to the case at bar. In Gibson, the movant was required to file his pro se Rule 29.15 motion on or before November 29, 1989. Movant did not file the motion until December 7, 1989. Id. at 525. The movant contended" he accidentally filed his pro se motion in the wrong court" and that "'someone' at the court told him that the motion would be forwarded to the correct court and that the date of receipt was not important." Id. Noting that the time limits of Rule 29.15 were both valid and mandatory and movant filed his pro se motion more than thirty days after he filed the transcript, we held that movant waived his right to proceed under the rule. Id. at 525-26. While Movant attempts to distinguish his situation from that of movant in Gibson by arguing that in Gibson there was no proof of a date stamp that movant filed his motion in the "wrong court" before the due date, the analysis and holding ofGibson still apply. If a movant fails to file his pro se motion in the sentencing court within the time limits, he waives his right to proceed under Rule 29.15. Id. at 525.
Movant also cites to Klemme v. State, 812 S.W.2d 569, 570 (Mo.App.E.D. 1991), a case in which the movant sent his pro se motion to the Palmyra courthouse after he was sentenced in Hannibal. Marion County has two geographic districts; District I is located in Palmyra while District II is located in Hannibal. Id. The movant's pro se motion reflected that he was sentenced in "Circuit Court District II, Marion County, Palmyra," and Palmyra received the motion on the ninetieth day after the movant was delivered to the Department of Corrections. Id. Because District II was not located in Palmyra, the Palmyra clerk sent the movant's motion to Hannibal, where the motion was filed on the ninety-first day and subsequently dismissed as untimely. Id.
Movant in Klemme was appealing the dismissal of his Rule 24.035 motion. Pursuant to Rule 24.035(b) movant is required to file his motion within ninety days after movant is delivered to the custody of the Department of Corrections. Klemme, 812 S.W.2d at 570.
The question in Klemme was whether the receipt of the motion in Palmyra met the "sentencing court" requirement of Rule 24.035. Id. We held that filing in Palmyra did comply with the rule, noting that Marion County only had one circuit court and that Section 478.720, RSMo 2000 stated that if a cause should have been filed in District I of Marion County but was instead filed in District II (or vice-versa), then the cause shall be transferred to the proper district and treated as though it were originally filed in that district. Id. at 570-71. "Section 478.720.6, RSMo 2000" As correctly pointed out by the State, the Klemme holding cannot apply to the case at bar, as Movant here did not send his pro se motion to another district of the correct sentencing court, but rather sent his motion to the wrong circuit court.
Section 478.720.6, RSMo 2000 specifically applies to Tenth Judicial Circuit, the Circuit Court of Marion County).
Movant also cites to State v. Harris, 827 S.W.2d 255 (Mo.App.E.D. 1992). In Harris, movant sent his pro se motion to Division 12, Office of the Clerk Civil Courts Bldg, Circuit Court, City of St. Louis, before the expiration of his time limit. Id. at 256-57. The office dealing with post-conviction motions was located in the Municipal Courts Building; the motion was forwarded, and the Municipal Courts office received it one day out of time. Id. at 257. We held the movant's motion was timely because the movant filed it with the clerk of Division 12, the division where he was tried. Id. The holding of Harris is inapplicable to the case at bar. Here, Movant did not send his pro se motion to the wrong building in the right circuit; rather, he sent his motion to the wrong circuit.
Movant also cites to Section 476.410, RSMo 2000, a statute pertaining to improper venue. Section 476.410, RSMo 2000, states, "[t]he division of a circuit court in which a case is filed laying venue in the wrong division or wrong circuit shall transfer the case to any division or circuit in which it could have been brought." Alford Adver., Inc. v. Mo. Highway and Transp. Comm'n, 944 S.W.2d 245 (Mo.App.W.D. 1997)" Venue has to do with the place of the proceedings, not with the power of the court to act. Alford Advertising, Inc. v. Missouri Highway and Transp. Com'n, 944 S.W.2d 245, 246 (Mo.App.W.D. 1997). Prior to the enactment of Section 476.410, RSMo 2000, improper venue required the court to dismiss the action. Keltner v. Keltner, 950 S.W.2d 690 (Mo.App.S.D. 1997)" Keltner v. Keltner, 950 S.W.2d 690, 691 (Mo.App.S.D. 1997). Since its enactment, improper venue is not a jurisdictional defect and the remedy for filing an improper venue is transfer, not dismissal. Parks v. Rapp, 907 S.W.2d 286, 292 (Mo.App.W.D. 1995)" Id.
Here, it appears the Circuit Court of the City of St. Louis forwarded Movant's pro se motion to the Circuit Court of Cape Girardeau County. Movant raises no claim to the contrary. Although Section 476.410 gives the Circuit Court of the City of St. Louis the ability to transfer a motion to its proper venue, case law supports the finding that the portion of Rule 29.15 requiring a movant to file his motion in the sentencing court is a jurisdictional issue.
The Notice of Appeal reads in pertinent part: "Movant subsequently filed a pro se motion for post-conviction relief with the Circuit Court of the City of St. Louis on January 6, 2003, which was received by the Circuit Court of Cape Girardeau County on January 9, 2003."
In Plant v. Haynes, 568 S.W.2d 585, 585-586 (Mo.App. 1978), plaintiff was sentenced on criminal charges in St. Louis and St. Charles Counties. He then filed two petitions for declaratory judgment attacking those sentences in the Circuit Court of Cole County. Upon review, the court held that the exclusive remedy for plaintiff's attack was to file a motion pursuant to Rule 27.26 (the forerunner of the current Rule 29.15) and that the rule specifically stated that the motion "shall" have been filed in the court where the sentence was imposed. Id. at 587. Interpreting federal law, the court noted that "a court, which did not impose the sentence, is without jurisdiction in the matter," and the court held that the requirement of Rule 27.26 to file the motion in the sentencing court was jurisdictional. Id. The court dismissed plaintiff's appeal for want of jurisdiction. Id. at 588.
Movant was not sentenced in the Circuit Court of the City of St. Louis. Accordingly, the Circuit Court of the City of St. Louis did not have jurisdiction to rule on Movant's case and could only transfer it to the appropriate circuit court. Moreover, Section 476.410, RSMo 2000, contains no language about the transferred case being treated as originally or timely filed. Movant cites no Missouri case law interpreting Section 476.410, RSMo 2000, to mean "originally filed."State v. Hill, 996 S.W.2d 544 (Mo.App.W.D. 1999)" State v. Knapp, 843 S.W.2d 345 (Mo. banc 1992)" Given that Section 476.410, RSMo 2000, contains no "originally filed" language, and given that the Circuit Court of the City of St. Louis apparently forwarded the motion to the Circuit Court of Cape Girardeau County, as it was supposed to do pursuant to the statute, the Circuit Court of Cape Girardeau County did not err in dismissing Movant's motion as untimely filed.
Movant did not file his pro se motion in the Circuit Court of Cape Girardeau County within ninety days of this Court's mandate as required by Rule 29.15(a). Accordingly, the motion court did not clearly err in dismissing the motion as untimely.
Appeal dismissed.