Moore v. State
Moore v. State
Opinion of the Court
James Edward Moore (“Appellant”) filed a Rule 29.15 motion for post-conviction relief on July 8, 1988, claiming that he received ineffective assistance of counsel. The motion court denied his Rule 29.15 motion for post-conviction relief as untimely on August 16, 1988. Appellant now — 24 years later — seeks to reopen his post-conviction proceeding by alleging the motion court erred by failing to appoint counsel to determine whether Appellant’s untimeliness was excusable. We dismiss Appellant’s appeal for failure to follow the Missouri Supreme Court Rules for post-conviction relief.
I. Background
Appellant was charged in the Circuit Court of St. Louis County with burglary in the first degree, in violation of Section 569.160, RSMo.1986
Around midnight on September 27,1985, a man wearing a ski mask and brown gloves entered victim’s duplex and forcibly raped and sodomized her. During the attack victim succeeded in raising her attacker’s mask above his eyes. From her view of his face and from hearing his voice, victim recognized her attacker. She identified her attacker, defendant, as a resident of the adjoining duplex. After the rape, victim went to a friend’s home, several blocks from her home, and called the police. The police initially contacted victim at 1:10 a.m. at which time she told them she had been raped by defendant. The police arrived at defendant’s duplex minutes later and placed him under arrest. Upon taking defendant into custody the police searched his duplex. The ski mask and gloves were not found in defendant’s duplex.
State v. Moore, 731 S.W.2d 351, 352-53 (Mo.App.E.D. 1987).
At the close of all the evidence, the jury found Appellant guilty on all counts. On December 30, 1986, the court sentenced Appellant, as a prior and persistent offend
On April 21, 1987, this Court affirmed Appellant’s convictions and sentences. Id. at 351.
On October 8,1987, Appellant filed a pro se post-conviction motion to vacate pursuant to Rule 27.26,
Meanwhile, during the pendency of the Rule 27.26 motion, Appellant filed another post-conviction motion pursuant to Rule 29.15, on July 8, 1988. The motion court overruled and denied such motion on August 16, 1988. Appellant filed a motion to reopen his Rule 29.15 proceeding on August 10, 2012 — nearly 24 years later. The motion court denied his motion, stating the court found nothing in Appellant’s motion to cause the court to find the relief sought was necessary or appropriate. This appeal follows.
II. Discussion
Post-conviction motions filed pursuant to Rule 29.15 are governed by the rules of civil procedure “insofar as applicable.” Rule 29.15(a); Cook v. State, 156 S.W.3d 418 (Mo.App.E.D. 2005). Rule 29.15 in effect at the time of the filing of Appellant’s Rule 29.15 motion provided the following:
This Rule 29.15 shall apply to all proceedings wherein sentence is pronounced on or after January 1, 1988. If sentence is pronounced prior to January 1, 1988, and no prior motion has been filed pursuant to Rule 27.26, a motion under this Rule 29.15 may be filed on or before June 30, 1988. Failure to file a motion on or before June 30, 1988, shall constitute a complete waiver of the right to proceed under this Rule 29.15. If a sentence is pronounced prior to January 1, 1988, and a prior motion under Rule 27.26 is pending, post-conviction relief shall continue to be governed by the provision of Rule 27.26 in effect on the date the motion was filed.
Rule 29.15(m) (1988).
Appellant’s sentence was pronounced on December 30, 1986 — prior to the January 1, 1988 deadline contained in Rule 29.15. Appellant filed his pro se post-conviction motion pursuant to Rule 27.26 on October 8, 1987, and while that was pending, he attempted to file a Rule 29.15 motion for post-conviction relief on July 8,1988.
Appellant’s post-conviction motion was accordingly governed by Rule 27.26. See Fincher v. State, 795 S.W.2d 505, 506 (Mo.App.W.D. 1990) (if a sentence is pronounced prior to January 1, 1988, and a prior motion under Rule 27.26 is pending, post-conviction relief is governed by the provisions of Rule 27.26). Because Appellant’s Rule 27.26 motion was reviewed, he was not entitled to proceed under Rule 29.15. Moore v. State, 827 S.W.2d at 213.
III. Conclusion
The appeal is dismissed.
. All statutory references are to RSMo.1986, unless otherwise indicated.
. In January 1988, the Missouri Supreme Court repealed and replaced Supreme Court Rule 27.26 with Supreme Court Rules 24.035 and 29.15.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.