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.

Washington-Bey v. State

Court of Appeals of Missouri, Western District, First Division

February 19, 2019

GARY TODD WASHINGTON-BEY, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal 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.

          Thomas N. Chapman, Judge

         Gary 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.

         Facts and Procedure

         Washington-Bey 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.

         On 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[1], 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.

         On 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.[2] On January 25, 2018, the circuit court issued an order, by docket entry, which stated: "Court lacks jurisdiction to rule on motion."[3]

         Discussion

         Ordinarily, 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).

         "Under 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.

         Pursuant 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.

         In his 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. [4] 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 meritorious.[5]

         In his 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 ...


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.