Jessie Carter, Movant/Appellant v. State of Missouri, Respondent/Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: Jessie Carter, Movant/Appellant v. State of Missouri, Respondent/Respondent. Case Number: 26541 Handdown Date: 06/30/2005 Appeal From: Circuit Court of Maries County, Hon. Douglas E. Long, Jr. Counsel for Appellant: Scott Thompson Counsel for Respondent: Shaun J. Mackelprang Opinion Summary: None Citation: Opinion Author: Phillip R. Garrison, Presiding Judge Opinion Vote: DISMISSED. Prewitt, J., and Rahmeyer, J., - concur Opinion:

Jessie Carter ("Movant") appeals from the motion court's dismissal of his amended motion to vacate, set aside, or correct sentence and judgment brought pursuant to Rule 29.15. (FN1) The motion court granted the State's motion to dismiss because Movant's motion was filed more than ninety days after the mandate affirming his convictions. On November 6, 2002, Movant was convicted, by jury verdict, of three counts of murder in the first degree in violation of Section 565.020. (FN2) The trial court sentenced Movant to three consecutive life sentences without the possibility of probation or parole. Movant's convictions and sentences were affirmed on appeal. State v. Carter, 71 S.W.3d 267, 273 (Mo.App. S.D. 2002). The mandate was issued on April 15, 2002. Movant asserts the motion court clearly erred in dismissing his Rule 29.15 motion as untimely filed because the date stamp on his pro se motion indicates it was timely filed on July 8, 2002, nearly a week before it was due. Movant further avers that Rule 51.10 requires any civil action being transferred "shall be treated and determined as if it had originated in

the receiving court" and that the Circuit Court of Maries County should have treated his pro se motion as though it was timely filed in its court on July 8, 2002. Our review of the denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Knese v. State, 85 S.W.3d 628, 631 (Mo. banc 2002); Bewley v. State, 151 S.W.3d 151, 153 (Mo.App. S.D. 2004). The findings and conclusions of the motion court are clearly erroneous only if, after a thorough review of the record, we are left with the definite and firm impression that a mistake has been made. Shockley v. State, 147 S.W.3d 189, 191 (Mo.App. S.D. 2004). Rule 29.15(b) requires a movant to file his motion for post-conviction relief within ninety days of the issuance of the mandate affirming his convictions and sentences. It states, If an appeal of the judgment or sentence sought to be vacated, set aside or corrected was taken, the motion shall be filed within [ninety] days after the date the mandate of the appellate court is issued affirming such judgment or sentence. In this case, Movant must have timely filed his Rule 29.15 motion by July 14, 2002. (FN3) Movant, however, erred, sending his motion to the Circuit Court of Jackson County. The circuit court staff wrote Movant on June 4, 2002, apprising him of his mistake and informing Movant that they would forward the pleading to the correct county, Maries County. Movant did not sign the signature block on the motion, but did sign the in forma pauperis affidavit, which was filed with his motion. The Circuit Court of Maries County received and file-stamped Movant's motion on July 17, 2002, ninety-three days after the mandate. Counsel was appointed to represent Movant and a request for additional time to file an amended motion was granted. Movant's amended motion to vacate, set aside, or correct judgment was filed on April 23, 2003. The State filed a motion to dismiss claiming Movant's motion exceeded the filing deadline. The motion court granted the State's motion noting that "Movant's motion was filed more than 90 days after mandate affirming convictions." Section 476.410 provides, "[t]he division of a circuit court in which a case is filed laying venue in the wrong division or wrong circuit shall transfer the case to any division or circuit in which it could have been brought." This statute allows a circuit court to transfer any pleading, filed in an improper venue, to the correct venue. Nicholson v. State, 151 S.W.3d 369, 370 (Mo. banc 2004). Further, Rule 51.10 requires "the court to which an action is transferred to treat the action 'as if it had originated in the receiving court.'" Id. at 371. Therefore, Movant's motion should have been considered timely filed based upon the filing date stamped by Jackson County. However, Movant did not sign his pro se motion. Rule 55.03(a) requires that "[e]very pleading, motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name or, if the party is not represented by an attorney, shall be signed by the party." It further explains that "[a]n unsigned paper shall be stricken unless omission

of the signature is corrected promptly after being called to the attention of the attorney or party." Rule 55.03(a). Movant must sign his motion in order for jurisdiction to attach. Tooley v. State, 20 S.W.3d 519, 520 (Mo. banc 2000). "It has long been held that an unsigned, unverified motion for post-conviction relief is a nullity and does not invoke the jurisdiction of the court." Id. The State argues that, because Movant did not correct the omission, his pleading never invoked the jurisdiction of the circuit court within the time limits of Rule 29.15. The only evidence of Movant's awareness that his signature was omitted is in Movant's statement of facts in which he asserts that he signed his amended motion because his pro se motion was unverified. This fact demonstrates that Movant was aware that his signature was missing from his pro se motion, yet he took no steps to promptly correct the omission as allowed by Rule 55.03(a). Movant did not sign his motion and did not move to correct the omission promptly, rendering his motion a nullity. Therefore, because the motion court did not have jurisdiction when it ruled on Movant's motion, we lack jurisdiction to consider it. We dismiss.

Footnotes: FN1. References to rules are to Missouri Rules of Criminal Procedure (2004). FN2. References to statutes are to RSMo (2000) unless otherwise indicated. FN3. However, since July 14, 2002, fell on a Sunday, Movant's motion was due on the following day, July 15, 2002.

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.