Court of Appeals of Missouri, Western District, Fourth Division
ANTHONY C. WASHINGTON, Appellant,
STATE OF MISSOURI, Respondent.
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
D. Pfeiffer, Chief Judge
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.
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.
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.
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 . . . ."
29.15(b) 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.
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).
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
(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 ...