Derrick Gresham, 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: Derrick Gresham, Appellant, v. State of Missouri, Respondent. Case Number: ED83372 Handdown Date: 03/16/2004 Appeal From: Circuit Court of the City of St. Louis, Hon. Patricia L. Cohen Counsel for Appellant: Jeffrey A. Goldfarb and Robert Herman Counsel for Respondent: Andrea K. Spillars and Stephanie Morrell Opinion Summary: Derrick Gresham appeals the judgment dismissing his Rule 29.15 motion as untimely. AFFIRMED. Division Two holds: Even if the circuit clerk improperly refused to file the first Form 40 Gresham submitted, he failed to raise this error in the motion court and we will not review it. Based on what was before the motion court, we cannot say that it clearly erred in dismissing Gresham's later motion as untimely. Citation: Opinion Author: Glenn A. Norton, Presiding Judge Opinion Vote: AFFIRMED. Knaup Crane and Hoff, JJ., concur. Opinion: Derrick Gresham was convicted of second-degree murder and armed criminal action after a jury trial. See State v. Gresham , 97 S.W.3d 112 (Mo. App. E.D. 2002) (affirming conviction). Gresham filed a motion seeking relief under Rule 29.15 over ninety days after this Court's mandate, and the court dismissed it as untimely according to Rule 29.15(b). Gresham appeals, and we affirm. The only judgment for Gresham to appeal correctly dismissed his motion as untimely, which he admits.

Nevertheless, he claims that, within ninety days of the mandate, he had submitted to the circuit clerk another motion, which the clerk returned to Gresham without filing because it was incomplete. Gresham argues that the motion was on the required Form 40 and contained his place of detention and his signature and that the circuit clerk had no discretion to refuse to file it. Gresham's supplemental legal file containing the rejected Form 40 and the clerk's letter returning the form is not certified as required by Rule 81.15(a) and (e). While the parties do not appear to dispute that the documents are true and accurate, there is no written agreement to that effect in accordance with Rule 81.15(c). More importantly, the circuit court's docket sheet--which is part of the certified legal file--contains no reference to these documents, and there is nothing else in the certified record to suggest that Gresham ever presented the rejected form to the motion court or argued that it should have been filed and deemed timely. Because he raises this argument for the first time on appeal, it is not reviewable. See White v. State , 939 S.W.2d 887, 904 (Mo. banc 1997). Based on what was before the motion court, we cannot say that it clearly erred in dismissing Gresham's motion as untimely. See Rule 29.15(k); State v. Williams , 861 S.W.2d 670, 675 (Mo. App. E.D. 1993). (FN1) The judgment is affirmed. Footnotes: FN1. If it is true that the circuit clerk's duties under Rule 29.15(c) are limited to ministerial functions--filing the motion, notifying the sentencing judge and delivering copies of the motion to the State and counsel--then Gresham may have recourse by way of a writ of mandamus, which is the appropriate way to compel the performance of a ministerial act. See generally State ex rel. Bunker Resource, Recycling and Reclamation, Inc. v. Dierker, 955 S.W.2d 931, 933 (Mo. banc 1997). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.