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Mercer v. State

Supreme Court of Missouri, En Banc

March 14, 2017

RICHARD S. MERCER, Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY The Honorable Kelly W. Parker, Judge

          GEORGE W. DRAPER III, JUDGE

         Richard 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.[1] 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.

         On 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.

         Procedural and Factual Background

         Following 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 Mercer's convictions and sentences were affirmed in a per curiam order and unpublished memorandum of law.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. 2001).

         On 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."

         Mercer 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.

         After 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.

         On 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 transfer.

         Discussion

         Appellate Jurisdiction

         As an 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.[2] 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.

         Here, 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 trial court.

(Emphasis added.)

         On 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)").[3]

         This 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 ...


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