Opinion
No. WD 56860.
Opinion Filed: December 7, 1999.
Appeal From the Circuit Court of Clay County, Honorable James E. Welsh, Circuit Judge, and Michael W. Walker, Commissioner.
Andrew A. Schroeder, Appellate District Defender, Kansas City, MO, Attorney for Appellant.
John Munson Morris, Assistant Attorney General, Jefferson City, MO, Attorney for Respondent.
Before: Ulrich, P.J., and Smith and Howard, JJ., concurs.
David Wayne Tooley appeals from the circuit court's order overruling his pro se Rule 24.035 motion for postconviction relief without an evidentiary hearing. The appellant was convicted of criminal non-support, § 568.040, in the Circuit Court of Clay County, Missouri, pursuant to a plea of guilty. The imposition of sentence was suspended, with the appellant being placed on supervised probation for five years. His probation was revoked subsequently, with the court sentencing him to five years imprisonment in the Missouri Department of Corrections.
All rule references are to the Missouri Rules of Criminal Procedure (1998), unless otherwise indicated.
All statutory references are to RSMo 1994, unless otherwise indicated.
The appellant pled guilty before Family Law Commissioner Michael W. Walker, having waived his right to jury trial. In addition, his probation was revoked and sentence imposed by the Commissioner. However, the judgment of his revocation and sentence was signed by Circuit Judge James E. Welsh.
The appellant raises two points on appeal. He claims that the motion court erred in overruling his pro se Rule 24.035 motion for postconviction relief because: (1) in doing so, he was denied his constitutional rights to due process of law in that the court did so without first appointing counsel to represent him as required by Rule 24.035(e) or giving him the opportunity to file an amended motion as required by Rule 24.035(g); and (2) it deprived him of his constitutional rights to due process of law in that the court did so without first issuing findings of fact and conclusions of law, as required by Rule 24.035(j).
We reverse and remand.
Facts
On March 19, 1997, the appellant was charged in the Circuit Court of Clay County, Missouri, with criminal non-support, § 568.040. On May 16, 1997, he pled guilty, pursuant to a plea agreement reached with the State, to criminal non-support, § 568.040. Pursuant to the plea agreement, the State recommended that the appellant receive a suspended imposition of sentence and be placed on probation for five years, which recommendation was accepted by the court.
The record does not reflect when an information was filed charging the appellant with criminal non-support, § 568.040, but we assume that one was filed. The record also does not reflect whether a preliminary hearing was conducted after which the appellant was bound over for trial, or whether he waived the same. We would note that the "stamped" docket entries employed by the trial court were in many respects illegible. Although acceptable and widely used by judges throughout the state, the use of such docket entries should be closely scrutinized to be sure a proper record is made.
On February 27, 1998, the appellant's probation was revoked and he was sentenced to five years imprisonment. The appellant was delivered to the Missouri Department of Corrections on March 19, 1998, to begin serving his sentence. He did not appeal directly from the judgment of his conviction and sentence. He did, however, timely file a pro se Rule 24.035 motion for postconviction relief on May 19, 1998, claiming ineffective assistance of counsel, rendering his plea involuntary.
In his motion, he declared: "I . . . state . . . that I have listed every claim known to me for vacating, setting aside or correcting the conviction and sentence attacked in this motion; and that I understand that I waive any claim for relief known to me that I have not listed in this motion." While the appellant signed and had notarized his in forma pauperis affidavit, which was attached to his motion, requesting that counsel be appointed to represent him because he was indigent, he did not sign the motion.
On June 15, 1998, the motion court made a docket entry overruling the appellant's pro se Rule 24.035 motion without issuing findings of fact and conclusions of law. Counsel was never appointed to represent the appellant, no amended motion was filed, and no evidentiary hearing was held on his pro se motion. Sometime thereafter, the appellant filed a motion with this court seeking leave to file notice of appeal out of time, which was granted on March 3, 1999. This appeal follows.
Discussion
Logically, before we can address the merits of the appellant's appeal, we must first address the State's contention that the motion court "did not clearly err by dismissing," (emphasis added), the appellant's pro se motion because it did not acquire jurisdiction over the motion in that the appellant did not sign it. Specifically, the State contends that the lack of a signature rendered the motion a legal nullity such that the motion court was not required to appoint counsel or issue findings of fact and conclusions of law, as the appellant claims on appeal. Essentially, what the State is arguing is that the movant's signature on the pro se motion was jurisdictional, such that the lack of one deprived the motion court of any jurisdiction to do anything with respect to the motion, except to dismiss.
A review of the record indicates that, contrary to the State's assertion, the motion court did not dismiss the appellant's motion, but, in fact, overruled it without an evidentiary hearing. Thus, we will assume that what the State is contending is that the motion court should have dismissed the appellant's pro se motion for a lack of jurisdiction, and as such, was not only justified in not appointing counsel, not affording an opportunity to file an amended motion, and not issuing findings and conclusions, but moreover, was not empowered to do so.
With respect to the motion court's failure to issue findings and conclusions, under Rule 24.035(j), it matters not whether a motion is denominated as being overruled or dismissed, with or without a hearing. Contrary to what the State contends, under such circumstances the motion court is required still, under the Rule, to issue findings and conclusions, unless certain exceptions apply. Barry v. State , 850 S.W.2d 348, 349-50 (Mo. banc 1993). A careful review of the record indicates that none of the exceptions apply here. As such, even assuming that the proper course of action was for the motion court to dismiss for a lack of jurisdiction, as the State contends, the appellant is still correct in asserting in his Point II that the court was required, under Rule 24.035(j), to make findings and conclusions, and its failure to do so requires us to reverse and remand for that purpose. Barry , 850 S.W.2d at 349-50 .
On remand, it is likely that the State will raise with the motion court the issue raised presently by the State: whether the appellant's failure to sign his pro se motion deprived the motion court of jurisdiction, thereby rendering it a nullity and preventing the court from appointing counsel and allowing the filing of an amended motion, effectively depriving the appellant of any further pursuit of postconviction relief in that the time for filing a motion has long since passed. Although not necessary to our decision, because this issue presents a question of law that is likely to be raised on remand, we will address it. Arnold v. American Family Mut. Ins. Co. , 987 S.W.2d 537, 539 (Mo.App. 1999).
In contending that the appellant's pro se Rule 24.035 motion was a legal nullity because he failed to sign it, the State relies on prior cases which addressed the issue of whether the movant's failure to "verify" his or her motion rendered it a nullity. See State v. White , 873 S.W.2d 590, 595 (Mo. banc 1994) (holding that an amended postconviction motion which did not meet the requirements of Rule 29.15 conferred no jurisdiction on the motion court); Crawford v. State , 834 S.W.2d 749, 752 (Mo. banc 1992) (holding that an amended postconviction motion which did not meet the requirements of Rule 24.035 was a nullity and presented nothing for the motion court to consider); State v. Khoshaba , 878 S.W.2d 472, 477 (Mo.App. 1994) (holding that a postconviction motion which was not properly verified failed to invoke the motion court's jurisdiction); State v. Isaiah , 874 S.W.2d 429, 435 (Mo.App. 1994) (holding that an amended postconviction motion that was not properly verified was a legal nullity which failed to invoke the jurisdiction of the motion court); Reynolds v. State , 783 S.W.2d 500, 500 (Mo.App. 1990) (holding that an unverified postconviction motion was a nullity and that the motion court's correct course of action would have been to enter an order of dismissal). Accordingly, if the motion court did not acquire jurisdiction over the appellant's pro se motion, it was powerless to rule on this motion or any amended motion that may have been filed, White , 873 S.W.2d at 595 , and the court would not have been required to appoint counsel or issue findings of fact and conclusions of law, as the appellant contends on appeal.
The cases relied upon by the State were decided under the prior version of the Rule, which provided that the "movant shall verify the motion," which the Missouri Supreme Court initially interpreted in Crawford v. State , 834 S.W.2d 749, 752 (Mo. banc 1992), as requiring the motion to be signed and notarized, but later decided in State v. White , 873 S.W.2d 590, 594 (Mo. banc 1994), as only requiring a signature. However, the present version of the rule, which controls here, does not include a requirement of verification. It provides, instead:
Prior to January 1, 1996, Rule 24.035(d), Missouri Rules of Criminal Procedure (1995), provided:
(d) Contents of Motion. The motion to vacate shall include every ground known to the movant for vacating, setting aside or correcting the judgment or sentence. The movant shall verify the motion, declaring that he has listed all grounds for relief known to him and acknowledging his understanding that he waives any ground for relief known to him that is not listed in the motion.
(Emphasis added.)
(d) Contents of Motion. The motion to vacate shall include every claim known to the movant for vacating, setting aside, or correcting the judgment or sentence. The movant shall declare in the motion that the movant has listed all claims for relief known to the movant and acknowledging the movant's understanding that the movant waives any claim for relief known to the movant that is not listed in the motion.
Rule 24.035(d) (emphasis added). Nonetheless, the State interprets the present Rule's language, that the "movant shall declare," as requiring a postconviction movant to sign his or her motion. Thus, in deciding the issue in question, we must determine whether Rule 24.035(d) can be interpreted as requiring a movant to sign his or her motion for postconviction relief in order to invoke the jurisdiction of the motion court.
In interpreting a rule of the supreme court, we rely on the same rules used for interpreting statutes. State ex rel. Streeter v. Mauer , 985 S.W.2d 954, 956 (Mo.App. 1999); State ex rel. American Family Mut. Ins. Co. v. Scott , 988 S.W.2d 45, 48 (Mo.App. 1998); State v. Tinoco , 967 S.W.2d 87, 89 (Mo.App. 1998). Thus, in interpreting Rule 24.035(d), we are required to ascertain the intent of the supreme court, giving the language used its plain and ordinary meaning. Streeter , 985 S.W.2d at 957; Tinoco , 967 S.W.2d at 89 . When a word used in a rule is not defined therein, it is appropriate to derive its plain and ordinary meaning from a dictionary. American Healthcare Management, Inc. v. Director of Revenue , 984 S.W.2d 496, 498 (Mo. banc 1999). When the intent of the court cannot be ascertained from the language of the rule by giving it its plain and ordinary meaning, the rule is considered ambiguous and only then can the rules of statutory construction be applied. Bosworth v. Sewell , 918 S.W.2d 773, 777 (Mo. banc 1996).
Webster's New World College Dictionary 358 (3 rd ed. 1997) defines the word "declare" as: "to make clearly known; state or announce openly . . . to make a statement." Thus, giving the language of Rule 24.035(d) in question its plain and ordinary meaning, we interpret it to mean that a movant is required to make a statement in his or her motion for postconviction relief that he or she "ha[d] listed all claims for relief known to [him or her] and acknowledging [his or her] understanding that the movant waives any claim for relief known to the movant that is not listed in the motion." Rule 24.035(d). As such, contrary to the State's assertion, we hold that the "declaration" language of Rule 24.035(d) does not require the movant to sign his or her motion, but only requires the movant to make the required statement in his or her motion.
With respect to the declaration requirement of the Rule, the appellant's pro se motion included a paragraph which read:
I, David Wayne Tooley # 534580, movant in this case, state by subscribing to this petition; that I know the contents thereof; that the above information is, to the best of my knowledge, true and correct; that I have listed every claim known to me for vacating, setting aside or correcting the conviction and sentence attacked in this motion; and that I understand that I waive any claim for relief known to me that I have not listed in this motion.
We find this statement to be sufficient to comply with Rule 24.035(d) as to the required declaration in question.
Although we recognize that no provision in the current version of Rule 24.035 expressly requires a movant to sign his or her original postconviction motion, Rule 24.035(a) does provide that "[t]he procedure to be followed for motions filed pursuant to this Rule 24.035 is governed by the rules of civil procedure insofar as applicable." Thus, we are required to look to the rules of civil procedure, insofar as applicable, to determine whether a postconviction movant is otherwise required to sign his or her original Rule 24.035 motion.
Rule 55.03(a), Missouri Rules of Civil Procedure (1998), which governs, inter alia, the signing of motions in civil actions, provides, in pertinent part, that "[e]very pleading, motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name or, if the party is not represented by an attorney, shall be signed by the party." The signature on a pleading, motion, or other paper constitutes a certificate that the filing is not for any improper purpose and is well grounded in fact and warranted by existing law. Rule 55.03(b); S.L.J. v. R.J. , 821 S.W.2d 104, 107 (Mo.App. 1991). The primary objective of Rule 55.03(a)'s signature requirement is the "elimination from the court system of groundless actions." Minx v. Missouri Dep't of Soc. Servs. , 945 S.W.2d 453, 457 (Mo.App. 1997) ( citing Mahoney v. Doerhoff Surgical Servs., Inc. , 807 S.W.2d 503, 508 (Mo. banc 1991)). Rule 55.03 has been held previously to apply to motions for postconviction relief. State v. Simmons , 955 S.W.2d 752, 771 (Mo. banc 1997); State v. Gardner , 932 S.W.2d 858, 861 (Mo.App. 1996); Thurman v. State , 859 S.W.2d 250, 254 (Mo.App. 1993).
Rule 55.03(a) provides that "[a]n unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party." Giving this language its plain and ordinary meaning, we interpret it to mean that if a signature's omission is called to the attention of the party or his or her attorney, he or she shall be given the opportunity to correct its omission prior to the document being struck. However, unlike Judge Howard, in his concurring opinion, we do not interpret it as placing an affirmative duty on the trial court to bring the fact of its omission to the attention of the party or attorney prior to striking the document. Minx , 945 S.W.2d at 456-57 .
As added support for the fact that a postconviction relief motion is required to be signed to be effective can be found in Rule 24.035(b), which provides, in pertinent part, that "[a] person seeking relief pursuant to this Rule 24.035 shall file a motion to vacate, set aside or correct the judgment or sentence substantially in the form of Criminal Procedure Form No. 40." This form contains an instruction paragraph, stating that "[i]n order for this motion to receive consideration by the Circuit Court, it shall be . . . signed by the movant." (Emphasis added.) Furthermore, the form provides a signature line, immediately preceding a paragraph containing the declaration, discussed supra, required by Rule 24.035(d), below which appears "signature of movant." These provisions indicate clearly to us that the supreme court intended for a postconviction movant to sign his or her motion, even though the rule no longer contains verification language. Malone v. State , 798 S.W.2d 149, 150-51 (Mo. banc 1990); Kilgore v. State , 791 S.W.2d 393, 395 (Mo. banc 1990).
For the reasons stated, supra, we would agree with the State's assertion that a movant is required by Rule 24.035 to sign his or her pro se motion for postconviction relief. However, for the reasons discussed, infra, we disagree that his or her failure to do so renders the motion an absolute legal nullity such that a motion court is not required to appoint counsel and allow the filing of an amended motion under Rule 24.035(e), which, if properly signed, would avoid dismissal for a failure to sign the pro se motion.
In Wilson v. State , 813 S.W.2d 833, 834 (Mo. banc 1991), the Missouri Supreme Court held, under the prior version of Rule 24.035, that although the pro se motion was not verified as required, the verification of the amended motion was sufficient to invoke the jurisdiction of the motion court. See also State v. Johnson , 851 S.W.2d 547, 551-52 (Mo.App. 1993). Later, in White , 873 S.W.2d at 595 , as discussed, supra, the supreme court held that to satisfy the verification requirement of the Rule the movant only had to sign the motion and was not required to have it notarized. Reading Wilson in light of White , which equated a movant's signature, without notarization, with verification under the Rule, we interpret Wilson as standing for the proposition that, if timely filed, the failure to verify a Rule 24.035 pro se motion by signing it is not jurisdictionally defective so as not requiring the motion court to appoint counsel or allow the timely filing of an amended motion under Rule 24.035(e). Hence, on remand, the motion court would not only be required to make findings and conclusions, as discussed, supra, but would be required to determine the appellant's eligibility for appointed counsel and afford him an opportunity to file an amended motion, with the time period for filing such an amended motion to commence running on the date this court's opinion becomes final. Allmon v. State , 973 S.W.2d 163, 165 (Mo.App. 1998). The filing of an amended motion will afford the appellant an opportunity to comply with the filing requirements of the Rule, specifically, the requirement that the motion be signed by the movant or movant's counsel.
Contrary to the assertion of Judge Howard, in his concurring opinion, the opinion in Wilson does not indicate whether the motion was "unverified" because it was not signed, not notarized, or both.
Conclusion
For the reasons stated, the circuit court's order overruling the appellant's pro se Rule 24.035 motion is reversed and the cause is remanded to the court for further proceedings in accordance with this opinion.
Howard, JJ., concurs in separate opinion.
I agree with the majority that a pro se motion must be signed by the movant. I do not agree that filing an unsigned motion invokes the motion court's jurisdiction in spite of failing to meet Rule 24.035's mandatory requirements.
It has long been held that an unsigned, unverified motion for postconviction relief is a nullity and does not invoke the jurisdiction of the court. Malone v. State, 798 S.W.2d 149, 151 (Mo. banc 1990). Appellant, however, argues that State v. White , 873 S.W.2d 590 (Mo. banc 1994) brushes aside the requirement to file a signed motion to invoke the court's jurisdiction. I disagree.
Our Supreme Court, in White , 873 S.W.2d at 594 , acknowledged frequent complaints from inmates regarding the difficulty in finding a notary public to verify their motions and accordingly the court eliminated the "technicality" of having motions verified, i.e., oath or affirmation before a notary. The court reiterated that it remains stringent about the time requirements of postconviction relief motions, but for the purpose of pro se motions movant's signature would be sufficient verification. Id. at 594. The movant's signature remains as a mandatory element for jurisdiction to attach.
Appellant's failure to sign his motion rendered it a nullity. The court's jurisdiction was not invoked at the time the motion was dismissed.
The majority points to Wilson v. State , 813 S.W.2d 833 (Mo. banc 1991) and State v. Johnson , 851 S.W.2d 547 (Mo.App.W.D. 1993) to support its proposition that, even though Rule 24.035 requires a signed motion, failure to sign it does not render it a nullity. Neither case aids appellant.
First, the Johnson court found that the appellant did in fact sign his motion. All that was lacking was the verification which was remedied by a timely filed amended motion. Id. at 552. Likewise, in Wilson , the sole deficiency was lack of the notary verification which was no longer necessary and, in any event, was remedied by the timely filing of a verified amended motion. Wilson , 813 S.W.2d at 834 . Neither case excuses an unsigned motion.
The signature requirement is not a hollow, meaningless technicality. As the majority states in its opinion, the signature requirement, "constitutes a certificate that the filing is not for any improper purpose and is well grounded in fact" and primarily has the objective of the "elimination from the court system of groundless actions." Requiring a signature also makes certain the party actually assents to the filing of the action on their behalf.
This being said, I agree with the result reached by the majority. Even though appellant's unsigned motion was a nullity and in violation of Rule 55.03(a), his cause was dismissed prior to the expiration of the 90-day period within which a pro se motion could be filed.
Rule 55.03(a) provides guidance to the court when confronted with an unsigned pleading. "An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party." Rule 55.03(a). Appellant should have had the opportunity to correct the deficiency and the record does not reflect that he received it.
This language has not been directly interpreted in Missouri. However, our Rule 55.03 is patterned after Rule 11, Fed.R.Civ.P., which contains identical language. The Advisory Committee Notes explain the language as follows:
"Unsigned papers are to be received by the Clerk, but then are to be stricken if the omission of the signature is not corrected promptly after being called to the attention of the attorney or pro se litigant. Corrections can be made by signing the paper on file or by submitting a duplicate that contains the signature." (Emphasis added.)