Williams v. State

DOWD, Presiding Judge.

This is an appeal of the denial of appellant’s Rule 29.15 motion without an eviden-tiary hearing. The court ruled that appellant’s motion for post-conviction relief was untimely filed. We affirm.

On June 22, 1988, appellant was found guilty of sodomy and sexual abuse in the first degree. § 566.060.3 and § 566.100 RSMo 1986. He was sentenced to a total of fifteen years in the penitentiary. His direct appeal was denied by this court in State v. Williams, 784 S.W.2d 273 (Mo.App.1989). On May 17, 1989, appellant filed his Rule 29.15 motion which was subsequently denied as being untimely filed.

In his point relied on, appellant claims that the motion court abused its discretion in denying his motion because the record clearly shows that the motion was timely filed.

The time requirements contained in Rule 29.15 are mandatory. Day v. State, 770 S.W.2d 692 695 (Mo.1989). Rule 29.-15(b) provides: “If an appeal of the judgment sought to be vacated, set aside or corrected was taken, the motion shall be filed within thirty days after the filing of the transcript in the appeal pursuant to Rule 30.04.” Rule 29.15(b).

In the case at bar, the transcript was filed on April 11, 1989. Thus, appellant had until May 11, 1989 to file with the court his Rule 29.15 motion. Appellant’s motion was filed on May 17, 1989. By filing his motion untimely, appellant waived his right to proceed under Rule 29.15. Day, 770 S.W.2d 696. Appellant complains that he mailed his motion on May 9, 1989 from the prison mailroom and thus his motion should be considered timely filed. In Harrell v. State, 775 S.W.2d 228 (Mo.App.1989), we ruled that a post-conviction motion is deemed filed when it is lodged in the court clerk’s office not when the motion is mailed. Id. at 229. The motion court correctly ruled that the appellant’s motion was not timely filed.

The judgment is affirmed.

SIMON, C.J., and JOSEPH J. SIMEONE, Senior Judge, concur.