343 S.W.3d 691
Mo. Ct. App.2011Background
- Movant Renell Burston was convicted in 1984 of first-degree burglary, forcible rape, and first-degree robbery, receiving 90 years in aggregate.
- Movant's 1986 post-conviction motion under Rule 27.26 was dismissed without prejudice after the State moved to dismiss.
- Movant, through counsel, filed his first Rule 29.15 motion in 1988; an evidentiary hearing was granted but counsel withdrew and no further action occurred for over a year.
- On January 29, 1990, the motion court dismissed the first Rule 29.15 motion without prejudice; Movant did not timely appeal or seek relief from that dismissal.
- Movant filed the second Rule 29.15 motion in October 2003, asserting ineffective assistance claims; the motion court denied in 2010 as successive.
- The court concluded Rule 29.15(l) bars successive motions and that the proper remedy for the first dismissal was an appeal, which Burston did not timely pursue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the first dismissal without prejudice was final/appealable | Burston argues it was not final and appealable. | State argues Rule 29.15(l) bars successive motions regardless of that dismissal's label. | The dismissal was appealable; Rule 29.15(l) bars successive motions. |
| Whether due process was violated by no merits ruling | Movant contends no ruling on merits violated due process. | State contends Rule 29.15 is procedural and does not guarantee a merits ruling. | Due process rights were not violated; Rule 29.15 is procedural. |
| Whether record is unclear about counsel's role in first motion and dismissal lacks findings | Movant claims unclear record about counsel amendments and inadequate findings. | State argues Rule 29.15(l) governs; no need to assess counsel’s actions beyond the procedural issue. | Record ambiguity does not override the prohibition on successive Rule 29.15 motions. |
| Whether Rule 67.01 permits refiling after dismissal without prejudice | Movant relies on Rule 67.01 to permit refiling after a without-prejudice dismissal. | Rule 29.15(l) precludes successive Rule 29.15 motions, and Rule 67.01 is inapplicable to Rule 29.15 motions. | Rule 67.01 is inapplicable; successive Rule 29.15 motions are prohibited. |
Key Cases Cited
- Belcher v. State, 299 S.W.3d 294 (Mo. banc 2009) (Rule 29.15(l) applicability; prohibition on successors)
- State v. McMillin, 783 S.W.2d 82 (Mo. banc 1990) (cannot bypass prohibition via reinstatement)
- Nolan v. State, 959 S.W.2d 939 (Mo. App. E.D. 1998) (dismissal without prejudice may be appealable when ends litigation)
- Thomas v. State, 808 S.W.2d 364 (Mo. banc 1991) (strict enforcement of Rule 29.15 to avoid delay and sandbagging)
- Rollins v. State, 716 S.W.2d 810 (Mo. App. W.D. 1986) (early rule on allowing successive motion under former rule)
- Lewis v. State, 700 S.W.2d 491 (Mo. App. E.D. 1985) (records showing opportunity to amend in context of Rule 27.26)