No. 54224 | Mo. Ct. App. | Oct 11, 1988
Movant appeals from the dismissal, without notice or hearing, of his Rule 27.26 motion for failure to prosecute his claim. We reverse and remand.
In September 1979, a jury found movant guilty of first degree robbery and armed criminal action, and he was sentenced to concurrent prison terms of fifteen years each. On direct appeal, this court affirmed movant’s robbery conviction but reversed the conviction for armed criminal action. State v. Wallace, 611 S.W.2d 251" date_filed="1980-12-02" court="Mo. Ct. App." case_name="State v. Wallace">611 S.W.2d 251 (Mo.App.1980).
On February 9, 1983, movant filed his pro se Rule 27.26 motion together with a motion for disqualification of judge. The circuit court sustained the motion for disqualification of judge and reassigned the case. On March 8, 1983, the circuit court denied movant’s Rule 27.26 motion because movant had failed to sign it. Movant refiled on March 22, 1983, and counsel was appointed for him. No action occurred on the motion until December 11, 1985, when counsel filed a motion to withdraw, or in the alternative, to stay the proceedings. No ruling on this motion is shown. Again, no action occurred until September 24, 1987, when the motion judge, on his own motion, dismissed movant’s claim on grounds of failure to prosecute.
Movant claims he was denied due process of law when the motion court dismissed his Rule 27.26 motion on its own motion, without prior notice to movant or his counsel. Wheatley v. State, 559 S.W.2d 526" date_filed="1977-12-19" court="Mo." case_name="Wheatley v. State">559 S.W.2d 526 (Mo. banc 1977).
Mitchell v. State, 755 S.W.2d 665" date_filed="1988-07-05" court="Mo. Ct. App." case_name="Mitchell v. State">755 S.W.2d 665 (Mo.App.1988) is factually similar, and controls. In Mitchell, this court modified the order of dismissal for failure to prosecute by adding “without prejudice.” In view of the Rule 29.15 time limitations on refiling a Rule 27.26 motion, we exercise our discretion and reverse and remand in order that movant may pursue his Rule 27.26 motion.
REVERSED AND REMANDED.