Hines v. State

Missouri Court of Appeals

Hines v. State

83 S.W.3d 108, 2002 Mo. App. LEXIS 1794, 2002 WL 1972948

CourtMissouri Court of Appeals

DecidedAugust 28, 2002

DocketNo. 24626

StatusPublished

This text of 83 S.W.3d 108 (Hines 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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Hines v. State, 83 S.W.3d 108, 2002 Mo. App. LEXIS 1794, 2002 WL 1972948 (Mo. Ct. App. 2002).

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Opinion

KENNETH W. SHRUM, Judge.

Robert Hines (“Movant”) appeals a judgment denying his Rule 29.15 motion for post-conviction relief from his convictions for two counts of assault in the first degree (§ 565.050) and one count of armed criminal action (§ 571.015).¹ The motion court entered findings of fact and conclusions of law that denied Movant’s claims without conducting an evidentiary hearing. On appeal, the State claims that Movant’s Rule 29.15 motion was not timely filed; therefore, it argues the motion court was without jurisdiction, and this appeal should be dismissed. We agree. The appeal is dismissed.

After a jury convicted Movant, he appealed the resultant judgment of the crimes described above. This court affirmed the judgment of conviction and sentence by summary order and an unpublished memorandum opinion per Rule 30.25, Supreme Court Rules (1999). We issued our mandate in that case on May 3, 1999. Movant filed his Rule 29.15 motion on August 5,1999, which was 94 days after this court’s mandate. Movant was required to have filed his motion no later than August 2, 1999, pursuant to Rule 29.15(b).²

Rule 29.15(b) reveals that “the motion shall be filed within ninety days after the date the mandate of the appellate court is issued affirming such judgment or sentence.” Failure to file the motion within the prescribed time allotment constitutes a complete waiver to proceed under the rule. Rule 29.15(b); Brown v. State, 53 S.W.3d 160, 160-61 (Mo.App.2001). An untimely motion is a fatal defect which cannot be cured by an otherwise timely amended motion. Thomas v. State, 31 S.W.3d 23, 25[1] (Mo.App.2000).

The appellate courts of this state have repeatedly held that the time limits of Rule 29.15 are valid and mandatory. Brown, 53 S.W.3d at 161; Thomas, 31 S.W.3d at 25. An untimely motion deprives the motion court of jurisdiction, and the court must dismiss the motion even if not requested to do so by the State. State v. Myers, 997 S.W.2d 26, 36 (Mo.App.1999). Because the motion was filed more than 90 days after the mandate was issued, the motion court had no jurisdiction; consequently, this court is without jurisdiction [109]*109to consider the appeal. Brown, 58 S.W.3d at 161.

The appeal is dismissed.

PARRISH and RAHMEYER, JJ., concur.

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KENNETH W. SHRUM, Judge.

Robert Hines (“Movant”) appeals a judgment denying his Rule 29.15 motion for post-conviction relief from his convictions for two counts of assault in the first degree (§ 565.050) and one count of armed criminal action (§ 571.015).¹ The motion court entered findings of fact and conclusions of law that denied Movant’s claims without conducting an evidentiary hearing. On appeal, the State claims that Movant’s Rule 29.15 motion was not timely filed; therefore, it argues the motion court was without jurisdiction, and this appeal should be dismissed. We agree. The appeal is dismissed.

After a jury convicted Movant, he appealed the resultant judgment of the crimes described above. This court affirmed the judgment of conviction and sentence by summary order and an unpublished memorandum opinion per Rule 30.25, Supreme Court Rules (1999). We issued our mandate in that case on May 3, 1999. Movant filed his Rule 29.15 motion on August 5,1999, which was 94 days after this court’s mandate. Movant was required to have filed his motion no later than August 2, 1999, pursuant to Rule 29.15(b).²

Rule 29.15(b) reveals that “the motion shall be filed within ninety days after the date the mandate of the appellate court is issued affirming such judgment or sentence.” Failure to file the motion within the prescribed time allotment constitutes a complete waiver to proceed under the rule. Rule 29.15(b); Brown v. State, 53 S.W.3d 160, 160-61 (Mo.App.2001). An untimely motion is a fatal defect which cannot be cured by an otherwise timely amended motion. Thomas v. State, 31 S.W.3d 23, 25[1] (Mo.App.2000).

The appellate courts of this state have repeatedly held that the time limits of Rule 29.15 are valid and mandatory. Brown, 53 S.W.3d at 161; Thomas, 31 S.W.3d at 25. An untimely motion deprives the motion court of jurisdiction, and the court must dismiss the motion even if not requested to do so by the State. State v. Myers, 997 S.W.2d 26, 36 (Mo.App.1999). Because the motion was filed more than 90 days after the mandate was issued, the motion court had no jurisdiction; consequently, this court is without jurisdiction [109]*109to consider the appeal. Brown, 58 S.W.3d at 161.

The appeal is dismissed.

PARRISH and RAHMEYER, JJ., concur.

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83 S.W.3d 108, 2002 Mo. App. LEXIS 1794, 2002 WL 1972948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hines-v-state-moctapp-2002.

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