Garrison v. State

Missouri Court of Appeals

Garrison v. State

11 S.W.3d 868, 2000 Mo. App. LEXIS 137, 2000 WL 61647

CourtMissouri Court of Appeals

DecidedJanuary 25, 2000

DocketNo. 22909

StatusPublished

Cited by1 cases

This text of 11 S.W.3d 868 (Garrison v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Garrison v. State, 11 S.W.3d 868, 2000 Mo. App. LEXIS 137, 2000 WL 61647 (Mo. Ct. App. 2000).

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Opinion

JOHN E. PARRISH, Judge.

Arthur Garrison (movant) was convicted of first degree assault and second degree attempted robbery. §§ 565.050 and 564.011, RSMo 1994. Those convictions were appealed and affirmed. See State v. Garrison, 975 S.W.2d 460 (Mo.App.1998). Movant thereafter sought post-conviction relief pursuant to Rule 29.15. The motion court dismissed his Rule 29.15 motion for being untimely filed.

The mandate in the direct appeal of movant’s criminal convictions was issued April 15, 1998. Movant filed the Rule 29.15 motion that is the subject of this appeal July 16, 1998, ninety-two days after mandate was issued in his direct appeal. Rule 29.15(b) requires that if there is an appeal of the conviction for which post-conviction relief is sought, a motion under that rule “shall be filed within ninety days after the date the mandate of the appellate court is issued.” Rule 29.15(b) further states, “Failure to file a motion within the time provided by this Rule 29.15 shall constitute a complete waiver of any right to proceed under this Rule 29.15 and a complete waiver of any claim that could be raised in a motion filed pursuant to this Rule 29.15.”

Movant asserts there was “good cause” for his failure to file his motion within the required 90 days after mandate issued in his direct appeal. He contends he signed his motion on July 12, 1998, and delivered it to prison authorities for mailing. He urges adoption of a “mail box” rule as was done in Ivy v. Caspari, 173 F.3d 1136 (8th Cir.1999), with respect to requests for federal habeas corpus relief. Movant requests that his motion be deemed filed at the time he delivered it to prison authorities for mailing. He contends the motion court erred in not so holding.

[869]*869The issue presented by this appeal was addressed in O’Rourke v. State, 782 S.W.2d 808 (Mo.App.1990). The Western District of this court found the issues contrary to the position movant takes in this appeal. We agree with the result reached in O’Rourke and the rationale on which that decision was based. The judgment of the motion court is affirmed.

CROW, P.J., and SHRUM, J., concur.

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JOHN E. PARRISH, Judge.

Arthur Garrison (movant) was convicted of first degree assault and second degree attempted robbery. §§ 565.050 and 564.011, RSMo 1994. Those convictions were appealed and affirmed. See State v. Garrison, 975 S.W.2d 460 (Mo.App.1998). Movant thereafter sought post-conviction relief pursuant to Rule 29.15. The motion court dismissed his Rule 29.15 motion for being untimely filed.

The mandate in the direct appeal of movant’s criminal convictions was issued April 15, 1998. Movant filed the Rule 29.15 motion that is the subject of this appeal July 16, 1998, ninety-two days after mandate was issued in his direct appeal. Rule 29.15(b) requires that if there is an appeal of the conviction for which post-conviction relief is sought, a motion under that rule “shall be filed within ninety days after the date the mandate of the appellate court is issued.” Rule 29.15(b) further states, “Failure to file a motion within the time provided by this Rule 29.15 shall constitute a complete waiver of any right to proceed under this Rule 29.15 and a complete waiver of any claim that could be raised in a motion filed pursuant to this Rule 29.15.”

Movant asserts there was “good cause” for his failure to file his motion within the required 90 days after mandate issued in his direct appeal. He contends he signed his motion on July 12, 1998, and delivered it to prison authorities for mailing. He urges adoption of a “mail box” rule as was done in Ivy v. Caspari, 173 F.3d 1136 (8th Cir.1999), with respect to requests for federal habeas corpus relief. Movant requests that his motion be deemed filed at the time he delivered it to prison authorities for mailing. He contends the motion court erred in not so holding.

[869]*869The issue presented by this appeal was addressed in O’Rourke v. State, 782 S.W.2d 808 (Mo.App.1990). The Western District of this court found the issues contrary to the position movant takes in this appeal. We agree with the result reached in O’Rourke and the rationale on which that decision was based. The judgment of the motion court is affirmed.

CROW, P.J., and SHRUM, J., concur.

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11 S.W.3d 868, 2000 Mo. App. LEXIS 137, 2000 WL 61647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrison-v-state-moctapp-2000.

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