Belk v. State

772 S.W.2d 26, 1989 Mo. App. LEXIS 921, 1989 WL 70252

• Court: Missouri Court of Appeals
• Decided: June 27, 1989
• Docket: No. 56043
• Status: Published

Opinion

CRIST, Judge.

Movant appeals the denial of his Rule 29.15 motion without an evidentiary hearing. We affirm.

On direct appeal, this court affirmed movant’s February 23, 1987 jury conviction for manslaughter and his ten-year prison sentence. State v. Belk, 759 S.W.2d 257 (Mo.App.1988). Movant filed his pro se Rule 29.15 motion seeking to vacate this sentence on July 12, 1988. This Rule 29.15 motion was denied by the court below.

Movant has appealed, asserting his Rule 29.15 motion was erroneously denied on three grounds: (1) his amended motion pled facts, not conclusions, not refuted by the record which entitled him to relief; (2) the denial of his motion on grounds it was untimely under Rule 29.15(m) was unconstitutional as it denied him procedural due process of law; and (3) the denial of his motion under Rule 29.15(m) denied movant equal protection.

Movant’s motion was correctly dismissed because movant, who was convicted and sentenced prior to January 1, 1988, waived his right to file for relief under Rule 29.15 by not filing his motion on or before the June 30, 1988 deadline. Rule 29.15(m). The constitutionality of this rule was upheld by the Missouri Supreme Court in Day v. State, 770 S.W.2d 692 (Mo. banc 1989).

Because the late filing of movant's motion bars its consideration, we do not reach his assertion of erroneous dismissal on the merits.

Judgment affirmed.

CRANDALL, P.J., and REINHARD, J., concur.