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Southern v. State

Court of Appeals of Missouri, Southern District, First Division

June 14, 2017

BRIAN MANUEL SOUTHERN, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E. Mountjoy

         Brian Manuel Southern ("Movant") appeals from the motion court's denial of his Rule 29.15 motion for post-conviction relief.[1] The motion challenged Movant's conviction for first-degree statutory rape and claimed the attorney who represented Movant at trial, Ruth Russell ("trial counsel"), was ineffective for failing to object to and move for a mistrial during a nurse's testimony and for failing to investigate and call a witness. Unfortunately, it appears Movant's amended motion was not timely filed and the motion court conducted no inquiry into the reason for the untimely filing. Accordingly, the motion court's judgment is reversed and the case is remanded.

         Discussion

         In 2010, Movant was charged with forcible rape and, in the alternative, with first-degree statutory rape. Movant had a jury trial on June 12 through June 15, 2012. The jury found Movant guilty of first-degree statutory rape, and the trial court sentenced Movant to thirty years in the Missouri Department of Corrections. This Court affirmed Movant's sentence and conviction. State v. Southern, No. SD32513 (Mo. App. S.D. March 27, 2014).

         Movant thereafter sought post-conviction relief. The motion court held an evidentiary hearing and denied relief. Movant appeals.

         Movant raises two claims of ineffective assistance of counsel. Before this Court may reach those issues, however, it must fulfill its duty to determine whether Movant's motion for post-conviction relief was timely filed. See Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015). The amended motion was not timely filed and the motion court did not conduct an inquiry into the reason for the untimely filing. These circumstances require remand.

         "Under Rule 29.15(a), a person convicted of a felony following trial may claim that the conviction violates the constitution or laws of Missouri by seeking post-conviction relief in the sentencing court." Dorris v. State, 360 S.W.3d 260, 265 (Mo. banc 2012). Post-conviction motions are governed by strict time limits, however, and "[t]he State cannot waive movant's noncompliance with the time limits" of the post-conviction rules. Id. at 268.

         The time limits for the filing of the amended motion in a case where the movant had a trial are governed by Rule 29.15(g). That rule provides in relevant part:

If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within 60 days of the earlier of the date both the mandate of the appellate court is issued and:
(1) Counsel is appointed, or
(2) An entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.
The court may extend the time for filing the amended motion for one additional period not to exceed 30 days.

         Rule 29.15(g).

         Here, post-conviction counsel was appointed on May 7, 2014. Then, post-conviction counsel requested, and the motion court granted, an additional 30 days in which to file the amended motion. That made the amended motion due on August 5, 2014. However, the amended motion was ...


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