Opinion
No. WD 61316
July 31, 2003
Appeal From The Circuit Court of Buchanan County, The Honorable Randall R. Jackson, Judge.
Susan L. Hogan, Kansas City, Missouri, for appellant[s].
Adriane Dixon Crouse, Assistant Attorney General, Jefferson City, Missouri, for respondent[s].
Before Hardwick, P.J., Spinden and Breckenridge, JJ.
John A. Wallingford appeals the dismissal of his Rule 29.15 motion for post-conviction relief for lack of jurisdiction. On appeal, he claims the motion court did, in fact, have jurisdiction, despite his failing to sign his pro se motion. He also asserts that the motion court erred in failing to issue findings of fact and conclusions of law on all allegations raised in the amended motion, and he claims that the motion court erred in assessing court costs against him. This court finds that Mr. Wallingford's failure to file a signed pro se motion within the time limits of Rule 29.15(b) deprived the motion court of jurisdiction to adjudicate his post-conviction motion. Therefore, the court properly dismissed the motion. This court further finds that the court's judgment contains sufficient findings of fact and conclusions of law to permit meaningful appellate review. The motion court did err, however, in assessing court costs against Mr. Wallingford. The judgment of the motion court is affirmed, in part, and reversed, in part, and remanded.
Factual and Procedural Background
Mr. Wallingford was convicted of three counts of delivery of a controlled substance, in violation of section 195.211, RSMo 2000. This court affirmed Mr. Wallingford's convictions on direct appeal in State v. Wallingford , 43 S.W.3d 852 (Mo.App. 2001). The mandate was issued on May 23, 2001.
All statutory references are to the Revised Statutes of Missouri 2000.
On August 21, 2001, exactly the ninetieth day after this court issued its mandate, Mr. Wallingford filed his pro se Rule 29.15 motion. In the motion, Mr. Wallingford failed to sign in the designated space following this declaration:
Rule 29.15(b) provides that "[i]f 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."
I, John A. Wallingford, movant in this case, state by subscribing to this petition: that I know the contents thereof; that the above information is, to the best of my knowledge, true and correct; that I have listed every claim known to me for vacating, setting aside or correcting the conviction and sentence attacked in this motion; and that I understand that I waive any claim for relief known to me that I have not listed in this motion.
______________________ Signature of Movant
The page after this declaration contained the Forma Pauperis Affidavit, in which Mr. Wallingford attested that he did not have the funds to pay any costs relating to the action. Mr. Wallingford signed the Forma Pauperis Affidavit and had his signature notarized.
The motion court appointed counsel for Mr. Wallingford, and his counsel filed an amended Rule 29.15 motion on November 26, 2001. Four days later, Mr. Wallingford filed a pro se "Motion to Correct Clerical Mistake Under Rule 29.12(c)." In the motion, Mr. Wallingford alleged that he "inadvertently forgot to sign" his pro se Rule 29.15 motion, and he asked the court to allow him to correct the unsigned motion. On January 7, 2002, Mr. Wallingford's counsel filed a "Motion to Accept Movant's Declaration Pursuant to Tooley v. State ." In that motion, counsel alleged that Mr. Wallingford did not realize that he had to sign under both the declaration and the Forma Pauperis Affidavit. Counsel alleged that she discovered the error just prior to filing the amended Rule 29.15 motion. Counsel asserted that to cure the error, she was attaching a declaration, signed by Mr. Wallingford, containing the same averments as the declaration at the end of the Rule 29.15 motion.
On March 13, 2002, the motion court entered its judgment dismissing Mr. Wallingford's Rule 29.15 motion for lack of jurisdiction. In the judgment, the court ordered Mr. Wallingford to pay costs in the amount of $108. Mr. Wallingford filed this appeal.
Standard of Review
Appellate review of the dismissal of a post-conviction motion is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Morley v. State , 68 S.W.3d 443, 444 (Mo.App. 2001). The findings and conclusions of the motion court will be deemed clearly erroneous if this court "is left with a definite and firm impression that a mistake has been made." Id .
Dismissal for Lack of Jurisdiction Proper
In his first point, Mr. Wallingford contends that the motion court erred in holding that it did not have jurisdiction to adjudicate his post-conviction motion because he failed to file a signed pro se motion within the time limits of Rule 29.15(b). The motion court based its dismissal on the holding of Tooley v. State , 20 S.W.3d 519 (Mo.banc 2000). In Tooley , the Supreme Court stated that the movant's signature on a post-conviction motion is required to invoke the motion court's jurisdiction. Id. at 520. The Court discussed the importance of the signature requirement:
The signature requirement is not a hollow, meaningless technicality. It constitutes a certificate that the filing is not for any improper purpose and is well grounded in fact and primarily has the objective of the elimination from the court system of groundless actions. Requiring a signature also makes certain the party actually assents to the filing of the action on his or her behalf.
Id . Since Mr. Tooley had failed to sign his motion, the Court found that the motion "was a nullity and in violation of Rule 55.03(a)." Tooley , 20 S.W.3d at 520 . Nevertheless, the Court noted that the motion court had dismissed Mr. Tooley's unsigned motion before the expiration of the ninety-day period during which a pro se motion could be filed. Id . Because Rule 55.03(a) provides that "[a]n unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party," the Court held that the motion court should have allowed Mr. Tooley "the opportunity to correct the deficiency." Tooley , 20 S.W.3d at 520 .
Rule 55.03(a) provides:
Signature Required. Every pleading, motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address, Missouri bar number, and telephone number, if any. Except when otherwise specifically provided by rule or statute, papers need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.
Applying the principles in Tooley to this case, Mr. Wallingford, like Mr. Tooley, failed to sign his pro se motion. Thus, Mr. Wallingford's pro se motion was a nullity, and did not invoke the jurisdiction of the motion court. Id. at 520. Unlike in Tooley , however, Mr. Wallingford did not attempt to correct his signature omission until after the ninety-day time limit for filing the pro se motion had expired. The Supreme Court has held that the time limits imposed by Rule 29.15 are valid and mandatory. Day v. State , 770 S.W.2d 692, 695 (Mo.banc 1989). On the ninety-first day after this court issued its mandate, the court lost jurisdiction over Mr. Wallingford's post-conviction motion. See McBride v. State , 65 S.W.3d 560, 561 (Mo.App. 2002). In contrast to Mr. Tooley, Mr. Wallingford had no time to correct the signature omission before the court lost jurisdiction over the case.
After the motion court lost jurisdiction over the case, the court did not have the power to permit Mr. Wallingford to cure the signature omission pursuant to Rule 55.03(a). Mr. Wallingford asserts several reasons why he believes the court should have permitted him to cure the defect, including the motion court's proceeding on the motion initially despite the signature omission; the appearance of his signature on the Forma Pauperis Affidavit; his and his counsel's promptly notifying the court of the omission once it was discovered; and his assertion that the omission was merely an oversight. None of these reasons change the fact that, without jurisdiction, the court could not permit him to cure the signature omission. The time limits for post-conviction relief make no provision for good cause or excusable neglect, which is essentially what Mr. Wallingford is arguing. See Morley , 68 S.W.3d at 445 . The motion court did not clearly err in dismissing Mr. Wallingford's Rule 29.15 motion for lack of jurisdiction. Mr. Wallingford's first point is denied.
That the motion court proceeded on the motion before dismissing it for lack of jurisdiction is inconsequential. Subject matter jurisdiction can be raised at anytime. See Rule 55.27(g)(3). Had the trial court not addressed the jurisdictional defect but instead decided the case on its merits, this court would have had a duty to address the issue of jurisdiction on appeal. See Hall v. State , 992 S.W.2d 895, 897 (Mo.App. 1999).
Mr. Wallingford argues that his having signed the Forma Pauperis Affidavit indicated that he consented to the filing of the Rule 29.15 motion and, therefore, satisfied the purpose of the signature requirement. Confirming that the movant agrees to the filing of the post-conviction motion is but one of the reasons for the signature requirement set forth in Tooley . 20 S.W.3d at 520. Other reasons are to certify "that the filing is not for any improper purpose and is well grounded in fact." Id . Mr. Wallingford's signature on the Forma Pauperis Affidavit certified that he did not have the funds to pay any costs relating to the post-conviction action. It did not certify that the filing was not for any improper purpose and was well grounded in fact. Id . Mr. Wallingford's signature on the Forma Pauperis Affidavit was insufficient to satisfy the signature requirement.
The Motion Court Complied with Rule 29.15(j)
In his second point, Mr. Wallingford claims that the motion court violated Rule 29.15(j) by failing to make findings of fact and conclusions of law on all of the issues raised in his amended motion. Rule 29.15(j) requires the motion court to "issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held." The court's findings and conclusions "must be sufficiently specific to allow meaningful appellate review." Barry v. State , 850 S.W.2d 348, 350 (Mo.banc 1993).
In its judgment, the motion court set out findings of fact and conclusions of law supporting its determination that it lacked jurisdiction to hear Mr. Wallingford's post-conviction motion. These findings and conclusions were sufficiently specific to permit meaningful appellate review. No further findings or conclusions were necessary, nor would they have been appropriate, given the motion court's lack of jurisdiction to adjudicate the issues raised in Mr. Wallingford's motion. The motion court complied with Rule 29.15(j). Mr. Wallingford's second point is denied.
No Authority to Assess Costs Against Mr. Wallingford Under PLRA
In his third point, Mr. Wallingford contends that the motion court clearly erred in assessing court costs against him. In its judgment, the motion court stated that it was entering "a judgment for costs taxed against Movant pursuant to the Prisoner Litigation Reform Act, RSMo. section 506.360 et seq.," and that:
IT IS FURTHER ORDERED that the correctional facility having custody of the Movant shall withhold funds on a monthly basis, beginning March, 2002, from the Movant's Inmate Account in a sum provided for under the "Prisoner Litigation Reform Act" (RSMo. §[ 506.360] et. seq.) and forward those funds monthly to the department of revenue pursuant to RSMo. § 506.372, until the sum of $108.00, which is found to be the unpaid costs due in this case, is paid in full.
The Prisoner Litigation Reform Act (PLRA) addresses several issues connected with civil actions brought by or against offenders. The motion court did not specify which PLRA statute it was relying on for the authority to order Mr. Wallingford to pay court costs. The PLRA provision that addresses the payment of costs in a judgment is section 506.378. Section 506.378 provides that "[i]f a judgment against an offender includes the payment of costs, the offender shall pay the full amount of costs ordered in the same manner as provided in section 506.372 or as otherwise authorized by law." Section 506.372 provides a procedure for an offender to pay court costs in monthly installments, based on the offender's income or the average monthly balance in the offender's account.
The term "offenders," as used in the PLRA, means those persons who are either under supervision or are inmates in the custody of the department of corrections. Sections 506.363 and 217.010(12).
Section 506.372 states:
If the court has entered an order for payment of fees in installments pursuant to section 506.369, the offender shall make monthly payments to the department of corrections of twenty percent of the preceding month's income credited to the offender's account until the fees are paid in full. The department of corrections shall forward payments from the offender's account to the department of revenue for deposit to the general revenue fund until the fees are paid in full. The department of corrections shall establish written guidelines for the priority of payment consistent with state and federal law.
In determining whether these PLRA statutes provide the authority for the motion court to order indigent movants such as Mr. Wallingford to pay costs in Rule 29.15 proceedings, this court looks at the plain and ordinary meaning of the language used in the statutes. State, Dep't of Soc. Servs., Div. of Aging v. Brookside Nursing Ctr., Inc. , 50 S.W.3d 273, 276 (Mo.banc 2001). The plain and ordinary meaning of the language of sections 506.378 and 506.372 presupposes the authority to enter an order assessing costs against the indigent offender. See section 506.378 ("If a judgment against an offender includes the payment of costs, . . .") and section 506.372 ("If the court has entered an order for payment of fees in installments . . ."). While these PLRA statutes provide the mechanism by which indigent offenders can pay costs where the court has the authority to order such costs, the statutes do not grant the authority to order indigent offenders to pay costs in such cases.
Moreover, whether these PLRA statutes were intended to apply to Rule 29.15 cases is questionable. When reading statutes, "[t]he provisions of a legislative act are not read in isolation but construed together and read in harmony with the entire act." Brookside Nursing Ctr. , 50 S.W.3d at 276 . The PLRA statutes state that they apply to civil actions filed by offenders. See sections 506.366, 506.375, 506.381, 506.384, 506.387, and 506.390. A post-conviction case is a civil action filed by an offender.
Mr. Wallingford argues that the nature of a Rule 29.15 proceeding is "quasi-criminal," citing State v. Gardner , 932 S.W.2d 858, 861 (Mo.App. 1996). The Supreme Court, however, has specifically stated that a post-conviction relief action is a civil proceeding. State v. Basile , 942 S.W.2d 342, 362 (Mo.banc 1997).
All of the PLRA statutes except sections 506.378 and 506.372 contain provisions that are clearly inapplicable to post-conviction relief cases, however. For example, section 506.366 provides a procedure for the non-prepayment of fees in civil actions or appeals brought by an indigent offender. Where an indigent offender files a motion for non-prepayment of fees in a civil action under section 506.366, section 506.369 provides a procedure for the court to order the indigent offender to make partial payment of court costs due with respect to the case.
Section 506.366 provides:
An offender seeking to bring a civil action or to appeal a judgment in a civil action without the prepayment of fees or security due to indigency shall submit a request to the court to proceed without the prepayment of fees. The request shall include a certified copy of the offender's correctional center account statement, which shall be provided by the department of corrections for the six-month period immediately preceding the filing of the petition or notice of appeal.
Section 506.369 states:
1. If the court receiving a motion pursuant to section 506.366 determines that an offender is unable to pay the full amount of court costs due with respect to a case, the court shall assess a partial payment of the twenty percent of the greater of the following:
(1) The average monthly deposits to the offender's account for the six-month period immediately preceding the filing of the complaint or notice of appeal requiring the payment of a fee; or
(2) The average monthly balance in the offender's account for the six-month period immediately preceding the filing of the complaint or notice of appeal requiring the payment of a fee.
2. If a trial court has entered an order pursuant to subsection 1 of this section upon the filing of plaintiff's petition, the determination of the court shall apply to the case until final judgment is entered by either the trial or an appellate court.
These statutes do not apply to post-conviction proceedings because a Rule 29.15 movant does not need to file a motion under section 506.366 requesting the waiver of prepayment of fees. Rule 29.15(b) specifically states that "[n]o cost deposit shall be required." If the movant in a Rule 29.15 case is seeking to proceed as an indigent, the movant does not utilize the provisions of the PLRA but, rather, is required by Rule 29.15 to file a Forma Pauperis Affidavit. Rule 29.15(a) specifically states that "[t]his Rule 29.15 provides the exclusive procedure by which [a person convicted of a felony after trial] may seek relief in the sentencing court for the claims enumerated." (Emphasis added.) Under Rule 29.15(b), a motion for relief under the rule shall be "substantially in the form of Criminal Procedure Form No. 40." Form No. 40 provides that "[i]f the motion is taken in forma pauperis, it shall include an affidavit setting forth information that establishes that movant will be unable to pay the costs of the proceedings." Thus, Rule 29.15 governs rather than the indigency procedures of sections 506.366 and 506.369 of the PLRA.
Other sections of the PLRA are also inapplicable to Rule 29.15 proceedings. Sections 506.375(1) and (3) provide for the dismissal of the offender's civil action where the allegation of indigency is untrue or the defendant is immune from the cause of action. In a post-conviction relief case, however, where the movant asserting indigency is found not to be indigent, Rule 29.15 does not provide for the dismissal of the case. Rather, the public defender is simply no longer available to represent the movant and the motion court changes its order permitting the movant to proceed in forma pauperis. See Bennett v. State , 88 S.W.3d 448, 450 (Mo.banc 2002). Dismissal on the basis of the defendant's immunity is also inapplicable to post-conviction relief cases because the defendant in a Rule 29.15 proceeding is the State, and Rule 29.15 does not provide the State with any immunity from post-conviction relief claims. Additionally, the PLRA contains provisions requiring review, before docketing or shortly thereafter, of a complaint in which an offender seeks redress from a governmental entity, officer, or employee, section 506.381; requiring exhaustion of administrative remedies, section 506.384; discussing how monetary damages awarded to an offender in connection with a civil action are to be paid, section 506.387; and requiring the notification of crime victims pending payment of compensatory damages to an offender in connection with a civil action, section 506.390; none of which are applicable to post-conviction relief cases.
Section 506.375 states:
Notwithstanding any court costs which have been paid, the court shall dismiss an offender's civil action or appeal from a judgment in a civil action at any time, including before service on the defendant, if the court determines any of the following:
(1) The allegation of indigency is untrue;
(2) The litigation is frivolous, malicious or fails to state a claim upon which relief may be granted; or
(3) The defendant is immune from the cause of action.
While provisions in the PLRA broadly refer to applying to a "civil action" filed by an offender, the context of the act as a whole indicates that the legislature did not intend that the PLRA encompass post-conviction relief claims. This interpretation is consistent with the statement in Rule 29.15(a) that "[t]his Rule 29.15 provides the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated."
Cases citing PLRA statutes involve inmate suits against employees in correctional institutions. See Cooper v. Minor , 16 S.W.3d 578, 580 (Mo.banc 2000) (inmate filed petition for declaratory judgment challenging "the prison officials' actions in confiscating his papers and the amount of time assessed in segregation"); Adams v. Schriro , 31 S.W.3d 461, 462 (Mo.App. 2000) (inmates sued director and other officials of the department of corrections, claiming that the officials mishandled prison canteen receipts); Harris v. Munoz , 6 S.W.3d 398, 399 (Mo.App. 1999) (inmate brought suit in small claims court against prison employees, alleging that the employees were responsible for the loss of certain possessions).
The PLRA did not provide the motion court with the authority to assess costs against Mr. Wallingford, an indigent movant in a Rule 29.15 proceeding. The motion court erred in holding otherwise. Mr. Wallingford's third point is granted.
The dismissal of Mr. Wallingford's Rule 29.15 motion for lack of jurisdiction is affirmed. The order assessing costs against Mr. Wallingford is reversed, and the cause is remanded to the motion court to order reimbursement to Mr. Wallingford of any costs paid.
All concur.