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Washington v. State

Court of Appeals of Missouri, Western District, Fourth Division

January 17, 2017

ANTHONY C. WASHINGTON, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Charles H. McKenzie, Judge

          Before: Mark D. Pfeiffer, Chief Judge, and Thomas H. Newton and Gary D. Witt, Judges

          Mark D. Pfeiffer, Chief Judge

         Mr. Anthony C. Washington ("Washington") appeals from the Judgment of the Circuit Court of Jackson County, Missouri ("circuit court"), denying his Rule 29.15 amended motion for post-conviction relief after an evidentiary hearing. We vacate the judgment and remand to the circuit court with instructions to dismiss Washington's untimely Rule 29.15 motion.

         Procedural Background

         After a jury trial, Washington was convicted of one count of the class C felony of stealing and one count of the class C felony of forgery. The court sentenced him as a prior and persistent offender to ten years' imprisonment on each count, with the sentences to run concurrently. His convictions and sentences were affirmed on direct appeal in State v. Washington, 397 S.W.3d 458 (Mo. App. W.D. 2013). We issued our mandate on May 29, 2013. Washington's original pro se Rule 29.15 motion for post-conviction relief was received and stamped filed by the clerk of the circuit court on September 4, 2013. Appointed counsel thereafter filed an amended motion alleging that Washington was denied his right to effective assistance of counsel by trial counsel's failure to assert Washington's right to due process and to a speedy trial.

         On January 16, 2015, an evidentiary hearing was held to consider the merits of the amended motion. The circuit court entered judgment, denying Washington's amended motion. The issue of the timeliness of Washington's pro se motion was not raised by the parties or addressed by the circuit court in its judgment.[1]

         Washington appeals.

         Analysis

         The Missouri Constitution vests the Missouri Supreme Court with the authority to establish rules relating to practice, procedure, and pleading for all courts. Mo. Const. art. V, § 5. "When properly adopted, the rules of court are binding on courts, litigants, and counsel, and it is the court's duty to enforce them." Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012) (internal quotation omitted). Accordingly, the circuit court has the duty to enforce the mandatory time limits in the post-conviction rules, even if the State does not raise the timeliness issue before the circuit court. Id. "The State cannot waive [a] movant's noncompliance with the time limits in Rule[ ] 29.15 . . . ." Id.

         Rule 29.15(b)[2] provides that if a movant appeals the judgment or sentence sought to be vacated, set aside, or corrected, the movant's pro se motion "shall be filed within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence." Here, Washington appealed his convictions and sentences for stealing and forgery after a jury trial. This court handed down its mandate affirming the underlying judgment and sentence on May 29, 2013. Accordingly, Washington's Rule 29.15 motion was due on August 27, 2013. See Rule 29.15(b). Washington's motion was stamped filed by the clerk of the circuit court on September 4, 2013, eight days out of time.

         If the movant's Rule 29.15 pro se motion is not timely filed, "it must be dismissed, as neither the motion court nor this Court has any authority to address the merits of [movant's] post-conviction claims." Miller v. State, 386 S.W.3d 225, 227 (Mo. App. W.D. 2012) (internal quotation omitted). The time limit in Rule 29.15 "serve[s] the legitimate end of avoiding delay in the processing of prisoner's claims and prevent the litigation of stale claims." Dorris, 360 S.W.3d at 269 (internal quotation omitted). If a post-conviction movant was not required to timely file, "finality would be undermined and scarce public resources will be expended to investigate vague and often illusory claims, followed by unwarranted courtroom hearings." Id. (internal quotation omitted). The "[f]ailure to file a motion within the time provided by this Rule 29.15 shall constitute a complete waiver of any right to proceed under this Rule 29.15 and a complete waiver of any claim that could be raised in the motion filed pursuant to this Rule 29.15." See Rule 29.15(b).

         "In a motion filed pursuant to Rule 29.15, the movant must allege facts showing a basis for relief to entitle the movant to an evidentiary hearing." Dorris, 360 S.W.3d at 267. "In addition to proving his substantive claims, the movant must show he filed his motion within the time limits provided in the Rules." Id. The movant can meet the burden of alleging that he timely filed his motion by either:

(1) timely filing the original pro se motion so that the time stamp on the file reflects that it is within the time limits proscribed in the Rule; (2) alleging and proving by a preponderance of the evidence in his motion that he falls within a recognized exception to the time limits; or (3) alleging and proving by a preponderance of the ...

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