Smith v. State

798 S.W.2d 152, 1990 Mo. LEXIS 95, 1990 WL 155971

• Court: Supreme Court of Missouri
• Decided: October 16, 1990
• Docket: 72514
• Status: Published

Opinions

COVINGTON, Judge.

On July 20, 1988, a jury convicted Samuel D. Smith of first degree murder, § 565.020, RSMo 1986, and sentenced him to death. This Court affirmed the conviction. State v. Smith, 781 S.W.2d 761 (Mo. banc 1989), vacated, — U.S. —, 110 S.Ct. 1944, 109 L.Ed.2d 306 aff'd on remand, 790 S.W.2d 241 (Mo. banc 1990). At the sentencing hearing on August 19, 1988, the trial court advised Smith of his rights under Rule 29.15, Mo.R.Crim.P. Smith responded that he understood that he was required to file his pro se motion in the circuit court within thirty days of the filing of the trial transcript in the Missouri Supreme Court. Smith’s trial counsel filed a notice of appeal on August 29, 1988, and filed the transcript on appeal on October 7, 1988. On January 6, 1989, Smith filed a pro se motion to vacate judgment and sentence; the motion was verified on December 20, 1988. On January 6 the trial court ordered the public defender to assign counsel to represent Smith. Motion counsel entered his appearance on March 14, 1989, and filed an unverified amended motion on May 19, 1989. The motion court conducted an evidentiary hearing on July 20, 1989, and subsequently entered findings of fact, conclusions of law, and an order denying Smith’s postconviction relief.¹ Because of Smith’s untimely filing of his pro se motion, the judgment is vacated and the cause remanded for dismissal.

Rule 29.15 provides the exclusive procedure by which a person claiming that a conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States may seek relief in the sentencing court. State v. Wheat, 775 S.W.2d 155, 156-57 (Mo. banc 1989). The rule plainly provides that a motion under the rule shall be filed within thirty days after the filing of the transcript on appeal. Rule 29.15(b). This time limitation is mandatory. Day v. State, 770 S.W.2d 692, 695 (Mo. banc), cert. denied sub nom. Walker v. Missouri, — U.S. —, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989).

Smith concedes that his motion for post-conviction relief was not timely filed but urges this Court to ignore the time limits clearly specified by Rule 29.15. Smith alleged at the conclusion of his pro se motion that he received the transcript on appeal on November 28, 1988, “which is the reason this 29.15 motion is just being filed.”² Smith represents before this Court that he relied upon the Office of the State Public Defender to advise of the time for filing the pro se motion, and he postulates various excuses for the failure.

Smith’s suggestions of ineffective assistance of counsel avoid or seek to obfuscate the issue.³ Of sole significance is the fact that this Court’s rules for postconviction relief make no allowance for excuse. See White v. State, 779 S.W.2d 571, 572 (Mo. banc 1989). Rule 29.15 contains no authority for extension of the time limits expressly stated. Id.

The judgment is. vacated and remanded for dismissal.

ROBERTSON, RENDLEN, HIGGINS, BILLINGS, and HOLSTEIN, JJ., concur. BLACKMAR, C.J., dissents in separate opinion filed.

1 . In its findings the trial court acknowledged the untimely filing but noted that the action proceeded by agreement of counsel "for the purpose of providing a record should the merits of the movant’s claims become an issue at some later date and to avoid the likelihood that evidence could become unavailable during the interim."

2 . Even if the transcript had been filed on November 28, rather than October 7, Smith’s motion, filed January 6, 1989, would have been untimely.

3 .Aware that he was not represented, Smith filed a request for appointment of postconviction counsel on the same date upon which he filed his pro se motion for postconviction relief. Smith claims no entitlement to postconviction counsel.