David Simmons, 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: David Simmons, Appellant, v. State of Missouri, Respondent Case Number: ED86236 Handdown Date: 05/02/2006 Appeal From: Circuit Court of St. Louis County, Hon. Larry L. Kendrick Counsel for Appellant: David Simmons, Pro Se Counsel for Respondent: Shaun J. Mackelprang Opinion Summary: David Simmons appeals from the motion court's denial of his Motion to reopen his 29.15 postconviction motion proceedings. DISMISSED. Division Three holds: The appeal is dismissed for lack of subject matter jurisdiction. The motion court did not have jurisdiction to enter a judgment on the merits of Simmons' motion because his allegations against his postconviction motion counsel did not rise to the level of abandonment. This Court, therefore, does not have jurisdiction. Citation: Opinion Author: Booker T. Shaw, Judge Opinion Vote: DISMISSED. Crane, P.J., and Ahrens, J., concur Opinion: David Simmons ("Movant") appeals from the denial of his Motion to Reopen his Rule 29.15 post-conviction relief proceeding ("Motion").(FN1) We dismiss this appeal for lack of subject matter jurisdiction. Procedural History This Court affirmed Movant's convictions for first-degree murder and first-degree burglary and the denial of his

29.15 post-conviction relief motion, after an evidentiary hearing in State v. Simmons, 865 S.W.2d 893 (Mo. App. E.D. 1993). Movant filed his pro se Motion in the motion court on March 11, 2005 raising four claims relating to trial counsel's ineffectiveness. The motion court entered a judgment denying his Motion on the merits. The court noted that Movant "alleges abandonment by post-conviction counsel but fails to cite [any] of the grounds courts have recognized as the sole bases [sic] for such an allegation. . . ." The State argues that neither the motion court nor this Court has jurisdiction. We agree. Analysis In Daugherty v. State, 116 S.W.3d 616 (Mo. App. E.D. 2003), this Court, following State ex rel. Nixon v. Jaynes, 63 S.W.3d 210 (Mo. banc 2001), held that courts where original post-conviction motions were filed have jurisdiction to consider motions seeking to reopen post-conviction proceedings to address claims of abandonment by post-conviction motion counsel. Daugherty, 116 S.W.3d at 617. This holding creates a narrow exception to the thirty-day limit existing under Rule 75.01 when a movant asserts his post-conviction counsel abandoned him.(FN2) Here, Movant waited twelve years to file his Motion in the original motion court and did not raise any allegations rising to the level of abandonment by his post-conviction motion counsel. While Movant frames his motion in terms of abandonment, he actually raises four issues alleging ineffective assistance of trial counsel. Regardless of the labels attached to these arguments, our analysis must be based on Movant's actual claims. Our Supreme Court has recognized a very narrow category of cases that rise to the level of "abandonment." Abandonment occurs when post-conviction counsel fails to timely file an amended motion, fails to amend Movant's pro se motion without explanation, or files an amended motion that is so patently defective that it amounts to a nullity. See Russell v. State, 39 S.W.3d 52 (Mo. App. E.D. 2001) (citing Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991); Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991); and State v. Bradley, 811 S.W.2d 379, 382 (Mo. banc 1991)). Movant has alleged none of these. The scope of a trial court's subject matter jurisdiction is a question of law which we review de novo. In re Marriage of Jeffrey, 53 S.W.3d 173, 175 (Mo. App. E.D. 2001).(FN3) Appellate jurisdiction derives from that of the circuit court. Id. If the circuit court does not have jurisdiction to consider the merits of a case, we have no jurisdiction to review the judgment rendered therefrom. Id. We find that the motion court did not have jurisdiction to rule on the merits of Movant's motion due to the allegations raised therein. Therefore, this Court lacks jurisdiction to consider Movant's appeal from an improperly rendered judgment. DISMISSED.

FN1.Movant's motion was entitled "Motion to Reinstate Post-Conviction Motion, pursuant to Daugherty v. State, 116 S.W. 3d 616 (Mo. App. E.D. 2003)." FN2.As this Court noted in Cook v. State, 156 S.W.3d 418, 420 (Mo. App. E.D. 2005), a Rule 29.15 motion is governed by the Rules of Civil Procedure. See Rule 29.15. Under Rule 75.01, the circuit court retains jurisdiction to "vacate, reopen, correct, amend, or modify" a judgment within thirty days following its judgment. Rule 75.01. Here, the motion court no longer retained jurisdiction of the Motion after January 24, 1993. FN3.See also Mansfield v. State, No. WD 65553, 2006 WL 2439 (Mo. App. W.D. 2006). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.