RICHARD S. MERCER, Appellant,
STATE OF MISSOURI, Respondent.
FROM THE CIRCUIT COURT OF DENT COUNTY The Honorable Kelly W.
W. DRAPER III, JUDGE
S. Mercer (hereinafter, "Mercer") currently is
incarcerated for his convictions of rape and incest. Mercer
filed a pro se motion for post-conviction DNA
testing, pursuant to section 547.035, RSMo Supp. 2001,
claiming DNA testing would prove his actual
innocence. The circuit court issued a
show cause order to the state, but without the benefit of the
state's response, the circuit court overruled
Mercer's motion in a docket entry. Mercer appealed,
claiming the circuit court failed to comply with the
requirements of section 547.035.
appeal, the Missouri Court of Appeals, Southern District,
sua sponte, declared that it did not have
jurisdiction to consider the appeal because the circuit
court's docket entry was not denominated a judgment.
After opinion, this Court granted transfer. Mo. Const. art.
V, sec. 10; Rule 83.03. This Court reverses the circuit
court's ruling and remands the case.
and Factual Background
a jury trial in 2008, Mercer was found guilty of
second-degree statutory rape and the class D felony of
incest. Mercer was sentenced as a prior and persistent
offender to fifteen years' imprisonment for rape and
seven years' imprisonment for incest, to run
consecutively. Mercer's convictions and sentences were
affirmed in a per curiam order and unpublished memorandum of
law. See State v. Mercer, SD29114 (May 4, 2009).
Mercer sought post-conviction relief, which was denied.
Mercer v. State, 330 S.W.3d 843 (Mo. App. S.D.
October 8, 2013, Mercer filed a pro se motion for
post-conviction DNA testing pursuant to section 547.035. On
October 21, 2013, the circuit court ordered the state to show
cause why Mercer was not entitled to a hearing on his motion.
Two days later, the circuit court also scheduled a hearing on
Mercer's motion for December 20, 2013. The case record
does not indicate that the state ever filed its response. On
April 21, 2014, the case record indicates a case review was
held. The docket entry in the case record stated: "Cause
called. [Mercer's] Post Conviction Motions Seeking
Forensic DNA Testing overruled and denied."
was not notified of any proceedings in his case and, on
August 11, 2014, Mercer, acting pro se, sent a
letter to the circuit court requesting information. His
letter stated that he had not received a response from the
state for the show cause order and, therefore, he had been
unable to respond. Mercer told the circuit court that a
family member viewed the docket sheets on Case.Net and
informed him that his motion for post-conviction DNA was
overruled. Mercer's letter further informed the circuit
court that there had been no findings of fact and conclusions
of law issued and this contravened section 547.035.8 and
Belcher v. State, 299 S.W.3d 294 (Mo. banc 2009).
Mercer requested an explanation from the circuit court. The
circuit court failed to provide Mercer with any additional
information as he requested.
receiving no additional information from the circuit court,
on October 14, 2014, Mercer sent another pro se
letter to the circuit court. In this letter, Mercer invoked
the Missouri Sunshine Law to request a copy of the case
record in his case. Three days later, the circuit court
mailed copies of the case record to Mercer.
March 5, 2015, the Southern District entered an order
sustaining Mercer's pro se motion allowing the
late filing of a notice of appeal. The Southern District
stated that, "having fully considered the motion, it
appears to the [c]ourt that the delay in filing a notice of
appeal was not due to [Mercer's] culpable negligence and
that there is good cause for [Movant's] request."
After opinion by the court of appeals, this Court granted
initial matter, both Mercer and the state address the
finality of the circuit court's ruling and the authority
of this Court to resolve this case on appeal. The Missouri Constitution grants circuit
courts "original jurisdiction over all cases and
matters, civil and criminal." Mo. Const. art. V, sec.
14. Our Constitution also vests general appellate
jurisdiction in the court of appeals. Mo. Const. art. V, sec.
3. Finally, this Court retains "exclusive appellate
jurisdiction" over certain cases, Mo. Const. art. V,
sec. 3, and authority to "finally determine all causes
coming to it from the court of appeals, whether by
certification, transfer or certiorari, the same as the
original appeal, " Mo. Const. art. V, sec. 10.
the circuit court had subject matter jurisdiction over
Mercer's post-conviction relief motion because it was
filed in a circuit court. Mo. Const. art. V, sec. 14. Once
the circuit court provided Mercer his docket sheets and
Mercer determined that the circuit court overruled his motion
for post-conviction DNA testing, Mercer filed a motion
seeking a late notice of appeal with the Southern District.
Rule 30.03 provides:
Where the defendant or the state has the right of appeal
including appeals from an order in a post-conviction
proceeding involving a prior felony conviction, but
notice of appeal is not filed with the clerk of the trial
court within ten days after the judgment becomes final, the
defendant or the state may file a notice of appeal in the
trial court if, within twelve months after the judgment
becomes final, a motion for leave to file such notice is
filed in the appropriate appellate court and it thereafter
sustains the motion and grants such leave.
Such special order may be made by the appellate court, in its
discretion, for good cause shown. The order shall specify the
time within which the notice of appeal is to be filed in the
February 26, 2015, Mercer filed a pro se motion
requesting to file a late notice of appeal, explaining the
circumstances surrounding his failure to file a timely
appeal. The Southern District issued a special order allowing
Mercer to file a late notice of appeal no later than March
25, 2015. Mercer filed his late notice of appeal on March 19,
2015. The Southern District had the authority to resolve
Mercer's appeal. See Vogl v. State, 437 S.W.3d
218, 238 (Mo. banc 2014) (stating that "in
postconviction proceedings, Rule 30.03 allows the movant to
seek leave to file a notice of appeal out of time within 12
months of the judgment becoming final"), and Fuller
v. State, 485 S.W.3d 768, 771 (Mo. App. W.D. 2016)
(clarifying that "Rule 30.03's twelve month window
to seek a special order permitting the late filing of a
notice of appeal applies to Rule 29.15 post-conviction
motions instead of the six month window applicable to civil
proceedings as provided in Rule 81.07(a)").
Court now has jurisdiction to resolve the issues before it.
"This Court has subject matter jurisdiction to determine
whether the motion court correctly or incorrectly exercised
its authority." Dor ...