Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Duke v. State

Court of Appeals of Missouri, Southern District, Second Division

February 8, 2018

JAMES C. DUKE, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

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

          JEFFREY W. BATES, J.

         James Duke (Duke) appeals from an order denying his amended Rule 29.15 motion to set aside his convictions for first-degree murder and armed criminal action (ACA) after an evidentiary hearing. See §§ 565.020, 571.015.[1] Procedurally, Duke questions the timeliness of the amended motion. Substantively, he contends the motion court clearly erred in denying the claim that trial counsel was ineffective for failing to "call an expert in developmental psychology to aid in his defense." Because we conclude that the amended motion was timely filed and that Duke's single point lacks merit, we affirm.

         In March 2010, Duke shot and killed Kody Ray (Victim) on Victim's front porch while his family was celebrating a child's birthday party inside the home. Duke claimed he acted in self-defense. He was 18 years old at the time.

         He was charged with first-degree murder and ACA and tried by the court after waiving his right to a jury trial. The trial court found Duke guilty as charged and sentenced him to life without parole for first-degree murder and 30 years' incarceration for ACA. This Court affirmed Duke's convictions on direct appeal. See State v. Duke, 427 S.W.3d 336, 337 (Mo. App. 2014). Thereafter, Duke sought post-conviction relief. After an evidentiary hearing, the motion court denied relief. This appeal followed.

         Timeliness of Duke's Post-Conviction Motions

         Before we can address the merits of Duke's single point, we first must determine whether his pro se and amended motions for post-conviction relief were timely filed. See Moore v. State, 458 S.W.3d 822, 826-27 (Mo. banc 2015); Price v. State, 422 S.W.3d 292, 297 (Mo. banc 2014) ("appellate courts have a duty to enforce the mandatory time limits" for post-conviction claims). The following facts are relevant to the timeliness issue.

         After Duke's direct appeal, this Court issued its mandate on May 7, 2014. Duke filed his pro se Form 40 motion to vacate, set aside or correct the judgment on August 4, 2014, which was within the 90-day time period to do so. See Rule 29.15(b). Therefore, Duke's pro se motion was timely filed.[2]

         On February 24, 2015, counsel was appointed to represent Duke and given 60 days to file an amended motion. When counsel entered his appearance, he requested an extension of 30 days, which the motion court granted. Counsel filed the amended motion on May 26, 2015.

         The parties disagree about whether the amended motion was timely filed, relying on their different methods of calculating the filing deadline. Based upon our independent review of the record, the amended motion was timely filed. Because neither party's proposed calculation is correct, we deem it prudent to provide a detailed explanation of how we calculated the due date for the amended motion.

         Rule 29.15(g) governs the time for filing an amended post-conviction motion. The rule specifies an initial deadline of 60 days, with one allowable extension of not more than 30 days:

If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of:
(1) the date both the mandate of the appellate court is issued and counsel is appointed or
(2) the date both the mandate of the appellate court is issued and an entry of appearance is filed by any counsel that is not appointed but enters an ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.