Dougan v. State

RICHARD B. TEITELMAN, Judge. Mark Dougan appeals the motion court’s dismissal of his Rule 29.15 motion for post-conviction relief. Although he was convicted of a felony, Dougan was not sentenced to incarceration and has not been in the custody of the department of corrections. The motion court dismissed the Rule 29.15 motion because Dougan “has never been incarcerated.... ” Dougan met the requirements of Rule 29.15 because he was convicted of a felony after trial and filed a timely notice of appeal. Dougan timely filed his Rule 29.15 motion because he did so within 90 days after the date the mandate of the appellate court was issued dismissing his appeal. The judgment of the motion court dismissing Dougan’s Rule 29.15 motion is reversed and the case is remanded. Background After a jury trial, Dougan was convicted of first degree tampering with a motor vehicle, a class C felony. The court fined Dougan, placed him on five years supervised probation, ordered him to pay restitution, and ordered him to complete community service and counseling. Dougan filed a timely notice of appeal with the court of appeals. Dougan then moved to dismiss the appeal. The court of appeals issued its mandate dismissing Dougan’s direct appeal on November 20, 2001. On January 23, 2002, Dougan filed a Rule 29.15 motion to vacate, set aside, or correct his judgment or sentence. The motion court dismissed Dougan’s Rule 29.15 motion. Dougan appealed. After opinion by the Court of Appeals, Western [595] District, the case was transferred to this Court. Mo. Const, art. V, section 10. Discussion Rule 29.15(a) provides: ... A person convicted of a felony after trial claiming that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the prowsions of this Rule 29.15- Rule 29.15 is only limited to those persons “convicted of a felony after trial.” While Rule 24.035 is available only to those “convicted of a felony on a plea of guilty and delivered to the custody of the department of corrections,” Rule 29.15 does not require incarceration or state custody.1 State v. Geiler, 866 S.W.2d 863 (Mo.App.1993). Therefore, Dougan may pursue a Rule 29.15 claim despite not having been incarcerated or delivered to the custody of the department of corrections. Regarding the timeliness of Dougaris motion, Rule 29.15(b) provides: ... If an appeal of the judgment or sentence sought to be vacated, set aside or corrected was taken, the motion shall be filed within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence. If no appeal of such judgment or sentence was taken, the motion shall be filed within 180 days of the date the person is delivered to the custody of the department of corrections.... By filing a notice of appeal, Doug-an’s direct appeal was “taken” as described by Rule 29.15(b). Therefore, the deadline for the filing of Dougan’s Rule 29.15 motion was 90 days after the date the court of appeals’ mandate was issued. See State v. Kelly, 966 S.W.2d 382 (Mo.App.1998); see also Jackson v. State, 876 S.W.2d 1 (Mo.App.1994) (“The time provision of Rule 29.15(b) that requires filing ninety days after delivery to custody applies only to persons who do not appeal their convictions.”) For the purposes of Rule 29.15(b), the dismissal of an appeal is treated as if the judgment were affirmed. Dougaa’s Rule 29.15 motion was timely filed. Therefore, the judgment of the motion court dismissing Dougan’s Rule 29.15 motion is reversed and the case is remanded. WHITE, C.J., WOLFF, STITH and PRICE, JJ., concur. LIMBAUGH, J., dissents in separate opinion filed. BENTON, J., concurs in opinion of LIMBAUGH, J. Footnotes [1] As noted below, Rule 29.15(b) sets a deadline for the motion in relation to delivery of the defendant to the custody of the department of corrections, but only if the defendant does not file an appeal.