Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF PHELPS COUNTY Honorable William E.
W. SHEFFIELD, C.J.
Ray Baird ("Movant") appeals from the dismissal of
his untimely pro se Rule 24.035 motion for
post-conviction relief. In his sole point he claims his motion
should be deemed timely under the "mailbox rule."
We reject this claim and affirm the motion court's
and Procedural Background
plead guilty to one count of second-degree robbery, one count
of second-degree murder, and one count of armed criminal
action. He was delivered to the Department of Corrections to
begin serving his thirty-five year sentence on October 25,
April 28, 2014, Movant's pro se Rule 24.035
motion for postconviction relief was received and date
stamped by the circuit clerk's office. The State
thereafter moved to dismiss the motion as untimely.
hearing on the motion to dismiss, Movant testified he
understood the motion was due on Wednesday, April 23, 2014,
and he placed it in the prison outgoing mailbox on Thursday,
April 17, 2014. He provided no additional evidence to explain
what happened to his motion between its mailing on April 17,
2014 and its filing on April 28, 2014.
motion court concluded that no recognized exception to excuse
the untimely filing was applicable and granted the
State's motion to dismiss. Movant now appeals.
contends in his sole point on appeal that the motion court
erred in dismissing his motion for post-conviction relief. He
concedes that the motion was untimely, see Rule
24.035(b), but argues it "should have been deemed timely
filed under the 'mailbox rule[.]'" We disagree.
there was no appeal in this case, Movant had 180 days from
the date he was delivered to the custody of the Department of
Corrections to file a motion for post-conviction relief.
See Rule 24.035(b). Movant was delivered to the
Department of Corrections on October 25, 2013. Therefore, his
postconviction relief motion was due no later than April 23,
2014. Furthermore, "[a] post-conviction motion is deemed
filed when it is deposited with the clerk of the circuit
court." Patterson v. State, 164 S.W.3d 546, 548
(Mo. App. E.D. 2005); see also Rule 24.035(c)
(stating that a movant shall file a motion with the clerk of
the trial court). "A movant's failure to file a Rule
24.035 motion within 180 days of the date he is delivered to
the custody of the Department of Corrections results in the
movant's complete waiver of his right to proceed
on that motion." Greenleaf v. State, 501 S.W.3d
911, 912 (Mo. App. E.D. 2016). "If the motion was 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." Graves v.
State, 372 S.W.3d 546, 548 (Mo. App. W.D. 2012).
pro se motion was received and date-stamped by the circuit
clerk's office on April 28, 2014, five days after the
180-day time limit had expired. The motion did not allege or
purport to establish that Movant could file a motion for
post-conviction relief outside the time limits of Rule 24.035
under a recognized exception to such time limits. The motion
was therefore untimely, and the motion court correctly
only argument in support of a contrary conclusion is that
this Court should apply the mailbox rule, i.e., the filing
date of his motion should be determined by the date he placed
it in the outgoing prison mailbox, not the date it was
received by the circuit court clerk. Missouri appellate
courts have consistently rejected this argument. See,
e.g., Patterson, 164 S.W.3d at 548; Purdue v.
State, 14 S.W.3d 255, 256-57 (Mo. App. S.D. 2000);
Stidham v. State, 963 S.W.2d 351, 353 (Mo. App. W.D.
1998); State v. Collier, 918 S.W.2d 354, 356 (Mo.
App. W.D. 1996); Day v. State, 864 S.W.2d 24, 25
(Mo. App. S.D. 1993); O'Rourke v. State, 782
S.W.2d 808, 809-810 (Mo. App. W.D. 1990). As has been
observed, "[t]he only relevant inquiry under Missouri
law is when the post-conviction motion was filed with the
clerk of the circuit court, not when it was mailed."
Patterson, 164 S.W.3d at 548. We see no reason to
depart from this long list of well-reasoned precedent unless
and until our Supreme Court instructs us otherwise.
relies on Houston v. Lack,487 U.S. 266 (1988), in
which the United States Supreme Court held that under federal
rules of procedure, a pro se defendant filed his
notice of appeal when he delivered it to prison authorities
for forwarding. Id. at 276. However, Movant's
argument that Lack should apply to Missouri's
procedure for post-conviction relief has also been considered
previously and rejected. See Day, 864 S.W.2d at 25;