Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of St. Charles County 1511-CC00217
Honorable Jon A. Cunningham
M. CLAYTON III, Presiding Judge.
Dale Brooks ("Movant") appeals the judgment denying
his Rule 29.15 motion for
post-conviction relief after an evidentiary hearing. Because
Movant's pro se Rule 29.15 motion was untimely filed, we
vacate the motion court's judgment and remand the cause
with directions to dismiss Movant's motion.
August 2011, Movant was charged by complaint with
second-degree robbery. Movant's trial counsel then filed
a motion for a bench trial, and a bench trial was held on
October 30, 2012. The trial court subsequently entered a
verdict and judgment finding Movant guilty of second-degree
robbery, and the court sentenced Movant to twenty-five years
then filed a direct appeal in this Court. Our Court issued a
2-1 decision vacating Movant's conviction for
second-degree robbery, entering a conviction for the lesser
offense of stealing, and remanding the matter to the trial
court for re-sentencing. State v. Brooks, 2014 WL
606526, at *1-7 (Mo. App. E.D. 2014). The State filed an
application for transfer in the Missouri Supreme Court, and
the Supreme Court entered an order granting the State's
application and ordering the cause to be transferred.
Missouri Supreme Court subsequently issued a decision
affirming Movant's conviction for second-degree robbery,
and the Supreme Court's mandate was issued on December 3,
2014. State v. Brooks, 446 S.W.3d 673, 674-77 (Mo.
March 16, 2015, which was 103 days after the Supreme Court
issued its mandate in Movant's direct appeal, Movant
filed a pro se Rule 29.15 motion for post-conviction relief.
The motion court then appointed post-conviction counsel for
Movant, and counsel filed an amended Rule 29.15 motion on
Movant's behalf. Following an evidentiary hearing, the
motion court entered a judgment denying Movant's Rule
29.15 motion for post-conviction relief. Movant appeals.
appeal, Movant claims the motion court clearly erred in
denying his Rule 29.15 motion for post-conviction relief. In
response, the State contends Movant's motion should have
been dismissed because his pro se motion was not timely
filed. Even though that argument was not presented to the
motion court, the timeliness of a movant's
post-conviction motion cannot be waived by the State, and our
Court must consider whether the timeliness requirement of
Rule 29.15 was satisfied on appeal. See Asher v.
State, 390 S.W.3d 917, 918 (Mo. App. E.D. 2013) (finding
similarly with respect to the timeliness requirement of Rule
29.15(b) provides that if a person, like Movant, appeals a
judgment or sentence after a trial, his motion for
post-conviction relief "shall be filed within 90 days
after the date the mandate of the appellate court is issued
affirming such judgment or sentence." Rule 29.15(b);
see Rule 29.15(a). Rule 29.15(b) further provides
that a person's failure to file his motion for
post-conviction relief within the 90-day time limit
"shall constitute a complete waiver of any right to
proceed under [ ] Rule 29.15 and a complete waiver of any
claim that could be raised in a motion filed pursuant to [ ]
Rule 29.15." Rule 29.15(b). Moreover, when a pro se
motion is considered untimely filed under Rule 29.15(b), the
motion court lacks authority to review the merits of the
motion and should dismiss it as untimely. Rinehart v.
State, 503 S.W.3d 287, 289-90 (Mo. App. W.D. 2016);
see Greenleaf v. State, 501 S.W.3d 911, 913 (Mo.
App. E.D. 2016) (similarly finding with respect to an
untimely filed Rule 24.035 pro se motion).
movant has the burden of pleading and proving timeliness.
Green v. State, 481 S.W.3d 589, 591 (Mo. App. S.D.
2015) (citing Dorris v. State, 360 S.W.3d 260, 267
(Mo. banc 2012)).
The movant must allege facts showing he timely filed his
motion and meet his burden of proof 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 [applicable post-conviction 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 evidence in his amended motion that the court misfiled
Green, 481 S.W.3d at 591 (emphasis omitted) (quoting
Dorris, 360 S.W.3d at 267). In Price v.
State, the Missouri Supreme Court discussed a recognized
exception to the time limits of the ...