Section 31.14 Practice Under Both Rules

LibraryCriminal Practice 2012 Supp

3. (§31.14) Practice Under Both Rules

Under Rules 29.15 and 24.035, the motion and two copies must be filed with the clerk of the trial court. Rules 29.15(c), 24.035(c). A Missouri court has ruled that a failure of the movant to file two copies with the original motion is not defective because the sanction of waiver does not apply to a failure to file copies with the original motion. Lewis v. State, 845 S.W.2d 137, 139 (Mo. App. W.D. 1993). A motion is deemed filed when it is received by the circuit clerk of the proper court. State v. Harris, 827 S.W.2d 255, 256 (Mo. App. E.D. 1992); State v. Simms, 810 S.W.2d 577, 583 (Mo. App. E.D. 1991). A defendant’s motion is considered filed not on the date it is mailed, but when it is lodged in the circuit clerk’s office. Harrell v. State, 775 S.W.2d 228, 229 (Mo. App. E.D. 1989) (Rule 29.15); Vollmer v. State, 775 S.W.2d 230, 231 (Mo. App. E.D. 1989) (Rule 24.035); Day v. State, 864 S.W.2d 24, 25 (Mo. App. S.D. 1993); Lewis, 845 S.W.2d at 139. The date the clerk’s office actually receives the motion is crucial in determining timeliness. Jameson v. State, 125 S.W.3d 885 (Mo. App. E.D. 2004).

A motion that was filed in the wrong district of the circuit of the trial court was, nevertheless, deemed properly filed under the post-conviction rules. Klemme v. State, 812 S.W.2d 569 (Mo. App. E.D. 1991). Missouri courts have declined to adopt a prison mailbox rule. Post-conviction motions are timely filed only when lodged in the court clerk’s office of the proper court and not when mailed. Daniels v. State, 31 S.W.3d 121, 123 (Mo. App. W.D. 2000). The time deadlines will not be excused or waived even when it is demonstrated that the untimely filing of the motion was caused by the prison officials’ dereliction of their duties with respect to inmate mail. Matchett v. State, 119 S.W.3d 558 (Mo. App. S.D. 2003). But when the movant produced a certified mail return receipt indicating that the circuit clerk’s office signed for the packet sent by the defendant containing the motion, the motion was deemed timely filed even though the circuit clerk had no record of the motion being filed. Broom v. State, 111 S.W.3d 563 (Mo. App. W.D. 2003). Evidence that the clerk’s office received a faxed motion and then file-stamped it within the time frames established proper filing, even if the faxed motion was not accompanied by a docket fee and exceeded the page restrictions in the local court rules for fax filings. Jameson, 125 S.W.3d at...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT