Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF DENT COUNTY Honorable Kelly W.
W. SHEFFIELD, C.J.
Edward Smith ("Movant") appeals from the motion
court's judgments in four consolidated post-conviction
cases. Those judgments dismissed Movant's post-conviction
motions because Movant's initial motions were not timely
filed under Rule 24.035(b). Movant claims the motion court
clearly erred in failing to find the delay in filing was
excused under the third-party interference exception to the
time limits of the post-conviction rules. However, Movant
failed to prove that he fell within a recognized exception to
the time limits of the post-conviction rules. Consequently,
we affirm the motion court's judgment.
and Procedural Background
period of several years, Movant pleaded guilty to five
different felonies in four separate criminal cases. Movant
was finally delivered to the Department of Corrections to
begin serving his sentences on January 9, 2015.
30, 2015, Movant filed four pro se motions seeking
post-conviction relief under Rule 24.035 in each of the four
separate criminal cases. The State thereafter filed a motion
to dismiss in each case.
motion court held a consolidated hearing regarding the
motions to dismiss. At that hearing, Movant testified
that he prepared his pro se motions prior to July 7,
2015, but that he could not mail them at that time because he
did not have money for postage. Movant further explained that
he received only $8.50 in income each month and, pursuant to
Department of Corrections regulations, he had to use that
money to purchase personal hygiene items. He testified that
he purchased nothing other than personal hygiene items during
the time he was trying to file his post-conviction motions.
The State presented an exhibit showing Movant's
transactions at the prison canteen which reflected purchases
for sodas, snacks, and tobacco.
motion court disbelieved Movant's testimony regarding his
ability to pay for postage. The motion court entered a
judgment dismissing Movant's pro se motions as
untimely filed. Movant appeals.
sole point on appeal, Movant claims the trial court clearly
erred in finding Movant did not fall into a recognized
exception to the time limits of the post-conviction rules.
Specifically, Movant argues the delay was "excused by
the Department of Corrections'[s] regulations limiting
inmate funds which interfered with [Movant's] ability to
file his motions in a timely manner and by the failure of the
Department of Corrections to assist with or provide the
necessary means for [Movant] to acquire postage to file his
motions." This argument is without merit because it
ignores the standard of review.
review of orders entered under Missouri's post-conviction
rules "is limited to a determination of whether the
motion court's findings of fact and conclusions of law
are clearly erroneous." Price v. State, 422
S.W.3d 292, 294 (Mo. banc 2014) (quoting Moore v.
State, 328 S.W.3d 700, 702 (Mo. banc 2010)).
"Findings and conclusions are clearly erroneous if,
after a review of the entire record, the court is left with
the definite and firm impression that a mistake has been
made." Id. (quoting Moss v. State, 10
S.W.3d 508, 511 (Mo. banc 2000)). Moreover, "[t]he
motion court determines the credibility of witnesses . . .
and is free to believe or disbelieve the testimony of any
witness, including that of the movant." Clay v.
State, 297 S.W.3d 122, 124 (Mo. App. S.D. 2009).
Appellate courts "defer to the motion court's
determinations of credibility." Id.
time limits in the post-conviction rules are valid and
mandatory. Henson, 2017 WL 1179797, at *3.
"Failure to file a motion within the time provided by
this Rule 24.035 shall constitute a complete waiver of any
right to proceed under this Rule 24.035 and a complete waiver
of any claim that could be raised in a motion filed pursuant
to this Rule 24.035." Rule 24.035(b); see also Green
v. State, 481 S.W.3d 589, 591 (Mo. App. S.D. 2015). To
avoid these waivers in cases where the pro se motion
is untimely on its face, the movant must allege and prove
either that "he falls within a recognized exception to
the time limits" or that "the court misfiled the
motion." Dorris v. State, 360 S.W.3d 260, 267
(Mo. banc 2012).
Movant did not file a direct appeal, his pro se
motion was due "within 180 days of the date the person
is delivered to the custody of the [D]epartment of
[C]orrections." Rule 24.035(b). Movant was delivered to
the Department of Corrections on January 9, 2015, and his
pro se motions were filed on July 30, 2015. There
were 202 days between January 9, 2015, and July 30, 2015.
Consequently, Movant's pro se motions were
untimely on their face. Furthermore, there were neither
allegations nor testimony suggesting the court misfiled the
motions. Thus, the only way the motion court would have
authority to address Movant's motions on the merits would
be if Movant alleged and proved that he fell within a
recognized exception to the post-conviction time limits.
are currently two recognized exceptions to the
post-conviction time limits: abandonment and third-party
interference. Price, 422 S.W.3d at 301. Abandonment
"cannot excuse an inmate's failure to file a timely
initial motion[.]" Id. Thus, the issues in this
case are ...