873 S.W.2d 662 | Mo. Ct. App. | 1994
John Victor Frentzel (movant) was charged with possession of burglar’s tools, § 569.180, RSMo 1978, (Count I), and two counts of unlawful use of a weapon, § 571.-030.1(1), RSMo Cum.Supp.1983, (Count II— knowingly carrying a knife concealed upon his person; and Count III — knowingly carrying a blackjack concealed upon his person).
Following a jury trial, movant was found guilty of the offense charged in Count I. On November 16, 1984, he was sentenced to imprisonment for a term of 5 years.
On December 7, 1992, movant filed a combined Rule 24.035 and Rule 29.15 motion
Movant presents one point on appeal. He contends the trial court erred in dismissing his motion “because the absolute deadline imposed by Rules 29.15(b) and 24.035(b) operated to arbitrarily deny [movant] his right to due process of law ... in that the rules make no provision for the late filing of a posteonviction motion for good cause shown.”
The pertinent provisions of the rules mov-ant has challenged state:
The motion shall be filed within ninety days after the movant is delivered to the custody of the department of corrections. Failure to file a motion within the time provided by this Rule 24.035 shall constitute a complete waiver of any right to proceed under this Rule 24.035.
Rule 24.035(b). And:
If an appeal of the judgment sought to be vacated, set aside or corrected was taken, the motion shall be filed within thirty days after the fifing of the transcript in the appeal pursuant to Rule 30.04. If no appeal of such judgment was taken, the motion shall be filed within ninety days of the date the person is delivered to the custody of the department of corrections.... Failure to file a motion within the time provided by this Rule 29.15 shall constitute a complete waiver of any right to proceed under this Rule 29.15.
Rule 29.15(b).
Time limitations imposed for fifing Rule 24.035 and Rule 29.15 motions are valid and
No error of law appears. Further opinion would have no precedential value. The order of the trial court dismissing movant’s motion is affirmed in compliance with Rule 84.16(b).
All concur.
. Count I was severed for trial separate from movant's other charges.
. The propriety of filing a combined motion for post-conviction relief based on Rules 24.035 and 29.15 is not an issue in this appeal. This court need not and does not address that question.
.Movant acknowledges in his brief that Missouri courts have consistently decided the issue he attempts to raise in this appeal adversely to him. He says he raises the issue again "for the purpose of preservation” in the event that a subsequent court decision may render prior decisions by the Supreme Court of Missouri inapplicable.
. Rule 24.035 and Rule 29.15 were effective January 1, 1988. Although not addressed by movant in this appeal, both included provisions regarding sentences pronounced prior to January 1, 1988, in criminal cases in which no prior motions for postconviction relief had been filed. Leave was granted to file motions under Rule 29.15 or 24.035 in such cases before June 30, 1988. Failure to do so constituted "a complete waiver of the right to proceed” under the applicable rule. See Rules 24.035(1) and 29.15(m). The record does not reflect that movant filed any motion within those time constraints.