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Pate v. State

Court of Appeals of Missouri, Southern District, First Division

October 27, 2017

STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF IRON COUNTY Honorable Judge Randy P. Schuller.


          MARY W. SHEFFIELD, P.J.

         Jermaine Cortez Pate ("Movant") raises three points in appealing a judgment that denied his amended Rule 29.15 motion for post-conviction relief.[1] In point 1, he argues the case must be remanded with directions for the motion court to enter a prior judgment sustaining his amended motion for post-conviction relief. In points 2 and 3, he argues the motion court clearly erred in denying claims that Movant's trial counsel was constitutionally ineffective. For the reasons that follow, Movant's points are denied, and the motion court's judgment is affirmed.


         After a jury found Movant guilty of receiving stolen property-a video camera- valued at $500 or more, he was sentenced to seven years' imprisonment. Movant's conviction was affirmed on direct appeal in an unpublished opinion. State v. Pate, No. SD33086 (Mo. App. May 28, 2015) (per curiam).

         Movant filed a pro se and amended motion for post-conviction relief.[2] Movant and the State agreed to submit the amended motion for the court's consideration based on the underlying criminal case file, the deposition transcript of Movant's trial counsel, and the deposition transcript of Movant's appellate counsel "in lieu of a live evidentiary hearing." On March 21, 2016, the motion court issued a judgment granting the amended motion ("the first judgment"). On April 13, 2016, the State filed a "Motion to Vacate Judgment." On June 28, 2016, the motion court granted the State's "Motion to Vacate Judgment." On August 1, 2016, the motion court then entered a new judgment denying Movant's amended Rule 29.15 motion ("the second judgment"). This appeal followed. Additional facts will be discussed below as necessary.


         Point 1-Control over the First Judgment

         Movant's first point claims the motion court was "without authority to enter [the second judgment] because the time for filing an amended judgment had expired" by the time the motion court entered the second judgment. Movant therefore concludes that the second judgment "is a nullity and this case must be remanded with directions to reinstate" the first judgment.

         "The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time." Rule 75.01. If no authorized after-trial motion is filed, the judgment becomes final at the expiration of thirty days after its entry. Rule 81.05(a)(1). If an authorized after-trial motion is timely filed, however, Rule 81.05(a)(2)(A) grants the trial court up to ninety days from the date the motion was filed to rule on the motion, after which the motion is deemed denied. Rule 81.05(a)(2)(A) and (B).

The combined effect of these Rules is to afford the trial court the authority to modify its judgment for any reason for good cause within thirty days of its entry, and the authority between the thirty-first and ninetieth day following entry of a judgment to modify its judgment to remediate a matter raised by a party in an authorized after-trial motion.

State ex rel. Missouri Parks Ass'n v. Missouri Dept. of Nat. Resources, 316 S.W.3d 375, 382 (Mo. App. W.D. 2010).[3]

         "Missouri law authorizes the filing of several after-trial motions, including motions for new trial . . . pursuant to . . . Rule 78.04." Payne v. Markeson, 414 S.W.3d 530, 538 (Mo. App. W.D. 2013). "[A] motion for a new trial is an authorized after-trial motion that is 'directed toward errors of fact or law in the trial.'" State v. Carter, 202 S.W.3d 700, 705 (Mo. App. W.D. 2006) (quoting Taylor v. United Parcel Service, Inc., 854 S.W.2d 390, 392 (Mo. banc 1993)). A "motion to vacate" is not an authorized after-trial motion, but it may be considered as one depending on the relief requested. Lucious v. State, 460 S.W.3d 35, 38 (Mo. App. E.D. 2015). This is because "in evaluating whether a pleading is an authorized after-trial motion, we do not concern ourselves with the title of the pleading or with a party's citation to a particular Rule, but we look instead to the substance of the pleading." Missouri Parks Ass'n, 316 S.W.3d at 382. In other words, "Missouri courts have looked not to the nomenclature employed by the parties, but to the actual relief requested in the motion." Berger v. Cameron Mut. Ins. Co., 173 S.W.3d 639, 641 (Mo. banc 2005).

         Here, Movant's amended motion for post-conviction relief alleged that trial counsel was constitutionally ineffective for failing to raise certain objections. After the first judgment was entered sustaining the amended motion, the State timely filed a "Motion to Vacate Judgment" 23 days later asking the court to "reconsider and vacate" the first judgment for seven reasons. The first six reasons claimed, in various respects, that Movant had failed to carry his burden of proving that trial ...

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