Court of Appeals of Missouri, Western District, First Division
from the Circuit Court of Boone County, Missouri The
Honorable Kevin Crane, Judge
Before: Lisa White Hardwick, P.J., Edward R. Ardini, and
Thomas N. Chapman, JJ.
N. Chapman, Judge
Todd Washington-Bey appeals pro se a circuit
court's ruling that it lacked jurisdiction to consider
his Motion to File Untimely Post-Conviction Relief Motion Due
to Abandonment ("Abandonment Motion"). Relatedly,
Washington-Bey argues that the circuit court initially erred
when, on November 3, 2005, it dismissed his Rule 29.15
Post-Conviction Motion ("Post-Conviction Motion").
We reverse the circuit court's judgment dismissing his
Abandonment Motion on jurisdictional grounds and remand for
further proceedings. His appeal of the 2005 order dismissing
his Post-Conviction Motion is untimely and is denied.
was convicted of tampering with a motor vehicle in the first
degree and sentenced to seven years in the Department of
Corrections. He appealed and his conviction and sentence were
affirmed in a decision issued by this Court on April 19,
2005. The Court of Appeals issued its mandate affirming his
conviction and sentence on September 1, 2005.
October 24, 2005, Washington-Bey filed a pro se Rule
29.15 Motion to Vacate, Set Aside, or Correct the Judgment or
Sentence. In his Post-Conviction Motion, he erroneously
alleged that the Court of Appeals issued its mandate on April
19, 2005. On November 3, 2005, the circuit court entered its
order dismissing his Post-Conviction Motion, finding that,
pursuant to Rule 29.15, he was required to file his motion within
90 days of the issuance of the Court's mandate; that the
motion was not filed until October 24, 2005; and that the
motion was therefore untimely in that it was not filed within
90 days of April 19, 2005. The circuit court did not appoint
counsel and he did not file a timely appeal of the circuit
court's order of dismissal.
January 3, 2018, Washington-Bey filed his Abandonment Motion,
in which he alleged that he was abandoned as a result of the
circuit court's failure to appoint him counsel in
2005. On January 25, 2018, the circuit court
issued an order, by docket entry, which stated: "Court
lacks jurisdiction to rule on motion."
our review of a judgment rendered in proceedings brought
pursuant to Rule 29.15 "is limited to a determination of
whether the motion court's findings and conclusions are
clearly erroneous." Eastburn v. State, 400
S.W.3d 770, 773 (Mo. banc 2013). However, in the present
case, the circuit court summarily dismissed
Washington-Bey's Abandonment Motion on jurisdictional
grounds. "Therefore, the question of whether the motion
court had jurisdiction" to address Washington-Bey's
Abandonment Motion "will be reviewed de
novo." Middleton v. State, 200 S.W.3d 140,
143 (Mo. App. W.D. 2006).
Rule 75.01, 'the circuit court retains control over
judgments for thirty days 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.'" Williams v.
State, 415 S.W.3d 764, 768 (Mo. App. W.D. 2013) (quoting
Dudley v. State, 254 S.W.3d 109, 111 (Mo. App. W.D.
2008)). "After the expiration of that thirty-day period,
however, the circuit court generally lacks the ability to
reopen a final judgment." Id. Nevertheless,
"our Supreme Court has recognized that a post-conviction
movant's valid claim of abandonment creates an exception
to that rule." Id.
to the exception, "[t]he court in which an original
post-conviction motion was timely filed has jurisdiction to
consider a motion that seeks to reopen those proceedings to
address claims of abandonment." Hammack v.
State, 130 S.W.3d 721, 722 (Mo. App. E.D. 2004). See
also Vogl v. State, 437 S.W.3d 218, 230 (Mo. banc 2014)
(reversing dismissal of post-conviction abandonment motion
and remanding for further proceedings, where the circuit
court had, years earlier, dismissed the original
post-conviction motion as having been untimely filed).
"The time limits in Rule 29.15 amount to restrictions on
'authority,' not 'jurisdiction.'"
Williams, 415 S.W.3d at 767 n.2. "Whether a
claim of abandonment is valid does not control the motion
court's jurisdiction. It is not the result that
determines jurisdiction, but the right of the court to
consider the matter." Crenshaw v. State, 266
S.W.3d 257, 259 (Mo. banc 2008). See also Middleton v.
State, 350 S.W.3d 489, 492 n.3 (Mo. App. W.D. 2011). A
circuit court commits reversible error when it dismisses a
post-conviction motion alleging abandonment for lack of
jurisdiction. Hammack, 130 S.W.3d at 722; see
also Dudley, 254 S.W.3d at 112.
first point relied on, Washington-Bey argues that the circuit
court erred when it ruled that it did not have jurisdiction
to rule on his Abandonment Motion.  In his Abandonment Motion,
Washington-Bey alleged that he was abandoned as a result of
the circuit court's 2005 order, which dismissed his
Post-Conviction Motion without appointing him counsel. The
circuit court had jurisdiction to consider
Washington-Bey's claim of abandonment. Point I is
granted. By holding that the circuit court had jurisdiction
to address Washington-Bey's claim of abandonment, we
express no opinion as to whether his allegations are
second point relied on, Washington-Bey argues that the
circuit court erred when, on November 3, 2005, it dismissed
his pro se Post-Conviction Motion without appointing
him counsel. If he wished to appeal the circuit court's
November 3, 2005, dismissal order, he was required to do so
within 10 days after that judgment ...