Robert Hines, 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: Robert Hines, Movant/Appellant v. State of Missouri, Respondent/Respondent. Case Number: 24626 Handdown Date: 08/28/2002 Appeal From: Circuit Court of Greene County, Hon. J. Miles Sweeney Counsel for Appellant: Mark A. Grothoff Counsel for Respondent: Dora A. Fichter Opinion Summary: None Citation: Opinion Author: Kenneth W. Shrum, Judge Opinion Vote: DISMISSED. Parrish and Rahmeyer, J.J., concur. Opinion: Robert Hines ("Movant") appeals a judgment denying his Rule 29.15 motion for post-conviction relief from his convictions for two counts of assault in the first degree (section 565.050) and one count of armed criminal action (section 571.015).(FN1) The motion court entered findings of fact and conclusions of law that denied Movant's claims without conducting an evidentiary hearing. On appeal, the State claims that Movant's Rule 29.15 motion was not timely filed; therefore, it argues the motion court was without jurisdiction, and this appeal should be dismissed. We agree. The appeal is dismissed. After a jury convicted Movant, he appealed the resultant judgment of the crimes described above. This court affirmed the judgment of conviction and sentence by summary order and an unpublished memorandum opinion per Rule 30.25, Supreme Court Rules (1999). We issued our mandate in that case on May 3, 1999. Movant filed his Rule 29.15 motion on August 5, 1999, which was 94 days after this court's mandate. Movant was required to have filed his motion no later than August 2, 1999, pursuant to Rule 29.15(b).(FN2)

Rule 29.15(b) reveals that "the motion shall be filed within ninety days after the date the mandate of the appellate court is issued affirming such judgment or sentence." Failure to file the motion within the prescribed time allotment constitutes a complete waiver to proceed under the rule. Rule 29.15(b); Brown v. State, 53 S.W.3d 160, 160-61 (Mo.App. 2001). An untimely motion is a fatal defect which cannot be cured by an otherwise timely amended motion. Thomas v. State, 31 S.W.3d 23, 25[1] (Mo.App. 2000). The appellate courts of this state have repeatedly held that the time limits of Rule 29.15 are valid and mandatory. Brown, 53 S.W.3d at 161; Thomas, 31 S.W.3d at 25. An untimely motion deprives the motion court of jurisdiction, and the court must dismiss the motion even if not requested to do so by the State. State v. Myers, 997 S.W.2d 26, 36 (Mo.App. 1999). Because the motion was filed more than 90 days after the mandate was issued, the motion court had no jurisdiction; consequently, this court is without jurisdiction to consider the appeal. Brown, 53 S.W.3d at 161. The appeal is dismissed. Footnotes: FN1.All rule references are to Supreme Court Rules (2001), unless indicated otherwise. All statutory references are to RSMo (1994), unless otherwise stated. FN2.The 90th day fell on August 1, 1999, which was a Sunday. Pursuant to Rule 44.01, Supreme Court Rules (1999), Movant was required to file the motion by the next day, i.e., August 2, 1999. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.