Scott v. State

Missouri Court of Appeals

Scott v. State

928 S.W.2d 409, 1996 Mo. App. LEXIS 1539, 1996 WL 509992

CourtMissouri Court of Appeals

DecidedSeptember 10, 1996

DocketNo. 20720

StatusPublished

Cited by2 cases

This text of 928 S.W.2d 409 (Scott 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.

Bluebook

Scott v. State, 928 S.W.2d 409, 1996 Mo. App. LEXIS 1539, 1996 WL 509992 (Mo. Ct. App. 1996).

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Opinion

CROW, Presiding Judge.

On February 15, 1995, Appellant pled guilty to four felonies and was sentenced to three concurrent ten-year prison terms and one five-year term, the latter sentence to run consecutively to the other three. He was delivered to the custody of the department of corrections on or before March 2, 1995, to serve those sentences.¹

On June 19, 1995, Appellant commenced the instant proceeding by filing a motion to [410]*410vacate the judgment and sentences² per Rule 24.035.³ After the motion court appointed counsel for Appellant, the State filed a motion to dismiss without an evidentiary hearing on the ground that Appellant’s motion was untimely. Appellant’s lawyer filed a response asserting, among other things, that Appellant’s constitutional right to due process of law was violated by Rule 24.035’s filing deadline.

The motion court granted the State’s motion to dismiss without an evidentiary hearing. Appellant brings this appeal. His sole point relied on is:

“The motion court clearly erred in dismissing Appellant’s Rule 24.035 motion as untimely filed, because the absolute deadline imposed by Rule 24.035(b) operated to arbitrarily deny Appellant his right to due process of law as guaranteed by the [United States and Missouri constitutions] in that the rule makes no provision for the late filing of a postconviction motion for good cause shown. Appellant was prejudiced in that he was denied review on the merits of his 24.035 motion.”

Rule 24.035(b), attacked in Appellant’s point relied on, reads, in pertinent part:

“ ... The motion shall be filed within ninety days after the movant is delivered to the custody of the department of corrections. Failure to file a motion within the time provided by this Rule 24.035 shall constitute a complete waiver of any right to proceed under this Rule 24.035.”

Appellant concedes the Supreme Court of Missouri has, in the past, rejected constitutional challenges to Rule 24.035(b) identical to the one asserted by him. However, he tells us he raises the issue “for the purpose of preservation, in the event that a federal court renders a decision contrary to that of the Missouri Supreme Court.”

In Day v. State, 770 S.W.2d 692, 695[1] (Mo. banc 1989), cert. denied, sub nom. Walker v. Missouri, 493 U.S. 866, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989), the Supreme Court of Missouri held the time limitation in Rule 24.035(b) is constitutional and mandatory. We are constitutionally controlled by decisions of the Supreme Court of Missouri. Mo. Const., Art. V, § 2 (1945); State v. Simpson, 813 S.W.2d 323, 323[2] (Mo.App. S.D.1991), cert. denied, 502 U.S. 1109, 112 S.Ct. 1209-10, 117 L.Ed.2d 448 (1992). We therefore deny Appellant’s claim of error.

Because Appellant’s motion to vacate was filed after expiration of the deadline established by Rule 24.035(b), the grounds for relief pled in it were time barred and procedurally waived, Phillips v. State, 902 S.W.2d 318, 320-21[1] (Mo.App. S.D.1995), and Appellant relinquished his right to seek relief under that rule, Leatherwood v. State, 898 S.W.2d 109, 111[2] (Mo.App. S.D.1995).

The order of the motion court is affirmed.

PARRISH and SHRUM, JJ., concur.

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CROW, Presiding Judge.

On February 15, 1995, Appellant pled guilty to four felonies and was sentenced to three concurrent ten-year prison terms and one five-year term, the latter sentence to run consecutively to the other three. He was delivered to the custody of the department of corrections on or before March 2, 1995, to serve those sentences.¹

On June 19, 1995, Appellant commenced the instant proceeding by filing a motion to [410]*410vacate the judgment and sentences² per Rule 24.035.³ After the motion court appointed counsel for Appellant, the State filed a motion to dismiss without an evidentiary hearing on the ground that Appellant’s motion was untimely. Appellant’s lawyer filed a response asserting, among other things, that Appellant’s constitutional right to due process of law was violated by Rule 24.035’s filing deadline.

The motion court granted the State’s motion to dismiss without an evidentiary hearing. Appellant brings this appeal. His sole point relied on is:

“The motion court clearly erred in dismissing Appellant’s Rule 24.035 motion as untimely filed, because the absolute deadline imposed by Rule 24.035(b) operated to arbitrarily deny Appellant his right to due process of law as guaranteed by the [United States and Missouri constitutions] in that the rule makes no provision for the late filing of a postconviction motion for good cause shown. Appellant was prejudiced in that he was denied review on the merits of his 24.035 motion.”

Rule 24.035(b), attacked in Appellant’s point relied on, reads, in pertinent part:

“ ... The motion shall be filed within ninety days after the movant is delivered to the custody of the department of corrections. Failure to file a motion within the time provided by this Rule 24.035 shall constitute a complete waiver of any right to proceed under this Rule 24.035.”

Appellant concedes the Supreme Court of Missouri has, in the past, rejected constitutional challenges to Rule 24.035(b) identical to the one asserted by him. However, he tells us he raises the issue “for the purpose of preservation, in the event that a federal court renders a decision contrary to that of the Missouri Supreme Court.”

In Day v. State, 770 S.W.2d 692, 695[1] (Mo. banc 1989), cert. denied, sub nom. Walker v. Missouri, 493 U.S. 866, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989), the Supreme Court of Missouri held the time limitation in Rule 24.035(b) is constitutional and mandatory. We are constitutionally controlled by decisions of the Supreme Court of Missouri. Mo. Const., Art. V, § 2 (1945); State v. Simpson, 813 S.W.2d 323, 323[2] (Mo.App. S.D.1991), cert. denied, 502 U.S. 1109, 112 S.Ct. 1209-10, 117 L.Ed.2d 448 (1992). We therefore deny Appellant’s claim of error.

Because Appellant’s motion to vacate was filed after expiration of the deadline established by Rule 24.035(b), the grounds for relief pled in it were time barred and procedurally waived, Phillips v. State, 902 S.W.2d 318, 320-21[1] (Mo.App. S.D.1995), and Appellant relinquished his right to seek relief under that rule, Leatherwood v. State, 898 S.W.2d 109, 111[2] (Mo.App. S.D.1995).

The order of the motion court is affirmed.

PARRISH and SHRUM, JJ., concur.

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928 S.W.2d 409, 1996 Mo. App. LEXIS 1539, 1996 WL 509992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-state-moctapp-1996.

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