Benjamin Bird, Appellant, v. State of Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Benjamin Bird, Appellant, v. State of Missouri, Respondent. Case Number: 75738 Handdown Date: 08/03/1999 Appeal From: Circuit Court of Cape Girardeau County, Hon. William L. Syler Counsel for Appellant: Gwenda R. Robinson Counsel for Respondent: Barbara K. Chesser Opinion Summary: Movant Benjamin Bird appeals from the motion court's order dismissing his Rule 29.15 motion for post-conviction relief. REVERSED AND REMANDED. Division Five holds: The motion court clearly erred in dismissing Movant's Rule 29.15 motion as prematurely filed. Movant's Rule 29.15 motion was filed while his direct appeal was still pending and was, therefore, prematurely filed. However, this is not by itself grounds for dismissal of the motion. Citation: Opinion Author: Lawrence G. Crahan, Judge Opinion Vote: REVERSED AND REMANDED. Rhodes Russell and Teitelman, JJ., concur. Opinion: Movant, Benjamin Bird, appeals from the motion court's order dismissing his Rule 29.15 motion for post- conviction relief. The motion court found that Movant's Rule 29.15 motion was prematurely filed because his direct appeal was still pending. Movant concedes the motion was filed early but argues this is not grounds for dismissal of his motion. The State agrees and joins with Movant to request the matter be reversed and remanded to the trial court. We reverse

and remand. This case is controlled by our recent decision in Nolan v. State, 959 S.W.2d 939 (Mo. App. E.D. 1998), where the motion court had dismissed a Rule 29.15 motion because it was filed while the direct appeal was still pending. We reversed and remanded for reinstatement of the motion, holding, "Prematurity of filing a motion for post-conviction relief is not by itself a ground for dismissal." Id. at 940. We find no difference between Nolan and the case at hand. Accordingly, the order of the motion court is reversed and the cause is remanded for the motion court to reinstate Movant's Rule 29.15 motion for post-conviction relief. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.