Kelvin Shelby MALONE, Appellant, v. STATE of Missouri, Respondent.
No. 71718.
Supreme Court of Missouri, En Banc.
Oct. 16, 1990.
Rehearing Denied Nov. 20, 1990.
798 S.W.2d 149
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
RENDLEN, Judge.
This appeal is from the trial court‘s dismissal of Defendant‘s Rule 29.15 motion. We affirm.
Defendant was charged by indictment on August 27, 1983, with the shooting death of William Parr, a 62-year-old cab driver in St. Louis. The shocking facts giving rise to that indictment are detailed in State v. Malone, 694 S.W.2d 723 (Mo. banc 1985), cert. denied, 476 U.S. 1165, 106 S.Ct. 2292, 90 L.Ed.2d 733 (1986). On Marсh 30, 1984, following the trial on the merits, the jury found Defendant guilty of capital murder. The following day, the same jury assessed the punishment at death and on April 26, Defendant was formally sentenced to death by the trial judge. On dirеct appeal Defendant‘s conviction and sentence were affirmed. State v. Malone, supra, at 728.
Defendant filed a Rule 27.26 motion on July 3, 1986, to set aside his conviction and sentence and on March 13, 1987, filed his first amended motion. Neither was verified nor signed by Defendant. The State moved to dismiss alleging that Defendant was currently incarcerated in California and was therefore not “in custody” in Missouri as required by the rule. The trial court sustаined the State‘s motion and the court of appeals in Malone v. State, 747 S.W.2d 695 (Mo. App. 1988), held the dismissal of the Rule 27.26 motions was proper but such did not bar Defendant, sentenced prior to January 1, 1988, from seeking relief within the June 30, 1988, deadline of Rule 29.15(m). Defendant‘s counsel during this Rule 27.26 motion period was Dorothy
While Defendant remained incarcerated in California, Hirzy continued her contacts by telephone and correspondenсe and at Defendant‘s request filed a Rule 29.15 motion with the circuit court on May 20, 1988. This motion was neither signed nor verified by Defendant but was instead signed by Hirzy. Sometime after the June 30, 1988, deadline, someone in the Speсial Public Defenders’ office became aware the motion was neither signed nor verified as required by the rule and sent a verification form to Defendant in California. He apparently exeсuted this form July 19 but from the record before us, it does not appear to have been filed with circuit court. No explanation is given for this failure.
Assuming defendant had a right, by virtue of filing the unverified motion, until 30 days following Mаy 20 to file an amended motion, the court granted thirty additional days to permit such action. Accordingly, on July 20, 1988, under
Faced with an incomplete record, we remanded the cause direсting the trial court to conduct an evidentiary hearing and determine whether the Defendant complied with the verification provisions of Rule 29.15 and whether Defendant‘s trial jury was impaneled contrary to the teachings of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and State v. Antwine, 743 S.W.2d 51 (Mo. banc 1987) as suggested by Defendant in his Rule 29.15 motions.
On January 19, 1990, the trial court conducted the requested evidentiary hearing and on February 20, Defendant filed a motion for leave to supply verification for his original and amended mоtions. This request was denied by the trial court.
On March 26, 1990, the trial court ruled against Defendant on his Batson and Antwine challenges and further held: “Personal verification by Movant is a jurisdictional requirement for any action filed under Rulе 29.15. . . . Movant‘s failure to file a properly verified motion on or before June 30, 1988, deprives this Court of jurisdiction to hear this matter and requires dismissal.” It is from this judgment that Defendant appeals.
Defendant had been sentenced on April 26, 1984, and did not effectively seek relief under
The content and form of the motion to be filed are delineated by
Thе motion to vacate shall include every ground known to the movant for vacating, setting aside, or correcting the judgment or sentence. The movant shall verify the motion, declaring that he has listed all grounds for relief known to him and acknowledging his understanding that he waives any ground for relief known to him that is not listed in the motion.
(Emphasis added.) Further,
The fact that he was afforded an evidentiary hearing on the merits of his claim is not helpful to Defendant, for verification is a jurisdictional requirement under
The verification requirement is not a shallow gesture of form over substance, for:
The obvious purpose of the verification requirement . . . is to discourage frivolous and unfounded allegations which must be addressed by trial courts already over burdened with a proliferation of post-conviction remedy motions.
West v. State, 787 S.W.2d 856, 857 (Mo.App. 1990). To require verification of a pro se and amended motion plaсes no undue burden on the movant, who need only sign and have his signature acknowledged. It gives pause to those who would mislead the court or abuse the system but creates no bar to those with reasonаble bases for such claims. Further, an important aspect of the rule is to discover and adjudicate all claims for relief in a single proceeding.
Judgment affirmed.
HIGGINS, COVINGTON and HOLSTEIN, JJ., and CRIST, Special Judge, concur.
BLACKMAR, C.J., concurs in result in separate opinion filed.
WASSERSTROM, Senior Judge, concurs in result and concurs in concurring in result opinion of BLACKMAR, C.J.
ROBERTSON and BILLINGS, JJ., not sitting.
BLACKMAR, Chief Justice, concurring.
Once again the Court terminates a post-conviction application on procedural grounds. It does so even though the trial court has held a full hearing on the grounds assigned in the 29.15 motion. I am confident that future courts the defendаnt may call upon will not find that the procedural delicts described in the principal opinion bar him from a ruling on the merits
This defendant started out under Rule 27.26, but was denied relief because he was not incarcerated in the state of Missouri. The problem is similar to State v. Rodden, 795 S.W.2d 393 (Mo. banc 1990). Rodden was, of course, incarcerated in the state and this defendant is not, but the Rodden opinion furnishes ample precedent for applying the 27.26 rules and affording this defendant a review of the points raised.
The case also has some similarities to Smith v. State, 798 S.W.2d 152 (Mo. banc 1990) (decided today), in which an evidentiary hearing was held. I suppose that, technically, the option I suggested in Smith is not available in this case because the defendant is not detained in Missouri. Therefore, we would not be able to treat the papers as a petition for habeas corpus. When and if the defendant is returned to Missouri, he wоuld be entitled to pursue habeas corpus remedies to the extent that he could establish cause for not following procedural remedies. Kilgore v. State, 791 S.W.2d 393 (Mo. banc 1990).
Perhaps the defendant will not return. I understand that he is subjеcted to two death sentences in California, and I doubt that that state will be very much disposed to let him go. But, I cannot condone a situation in which the state provides counsel for a movant, as rеquired by our rules, and then seeks to impose a procedural default because of the failure of appointed counsel to do what should be done within the time required. The principal oрinion‘s discourse about the plain meaning of Rule 29.15 is unconvincing. We made that rule rather recently, and we are entitled to give it a reasonable interpretation. Cases in other areas hold that a requirement of verification may be relaxed if opposing counsel proceeds to hearing without raising the point. There is no reason why Rule 29.15 could not be construed in a similar manner.
Our Court wоuld best serve the interest of speedy justice if we would insure that factual questions which arise in post-conviction proceedings are speedily disposed of, with evidentiary hearings when required, and thеn finally reviewed in the appellate process.
I have examined the merits of the petitioner‘s arguments and find them to be without merit. Inasmuch as the majority does not reach the merits, I see no need for detailed discussion. I would affirm on the merits.