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Smith v. State

Court of Appeals of Missouri, Southern District, First Division

May 25, 2017

JOSEPH EDWARD SMITH, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

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

          OPINION

          MARY W. SHEFFIELD, C.J.

         Joseph 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).[1] 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.

         Factual and Procedural Background

         Over a 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.

         On July 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.

         The motion court held a consolidated hearing regarding the motions to dismiss.[2] 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.[3]

         The 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.

         Discussion

         In his 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.

         Appellate 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."[4] 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.

         The 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).

         Because 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. See id.

         There 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 ...


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