Hollingshead v. State

VICTOR C. HOWARD, Presiding Judge,

dissenting.

Before considering the merits of a point on appeal, we must first determine, sua sponte, whether the issue has been preserved for appellate review. Pope v. Pope, 179 S.W.3d 442, 450 (Mo.App. W.D.2005). This applies where a party fails to file a motion to amend pursuant to Rule 78.07(c) but later complains about the form or language of a judgment. See Crow v. Crow, 300 S.W.3d 561, 564 (Mo.App. E.D.2009). Hollingshead did not preserve his only claim of error. Accordingly, I would dismiss his appeal.

A motion court must issue findings of fact and conclusions of law on all issues presented in a motion filed under Rule 24.035 or Rule 29.15. This is required by statute, section 547.360.10, and Supreme Court rule, 24.035(j) and 29.15(j). Holl-ingshead’s only complaint is that the motion court erred when it denied his Rule 24.035 motion without issuing adequate findings and conclusions. However, “[i]n all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings,” must be brought to the motion court’s attention in a motion to amend the judgment in order to be preserved for appellate review. Rule 78.07(c).

The purpose of Rule 78.07(c) is to ensure that complaints about the form and language of judgments are brought to the attention of the trial court where they can be easily corrected, alleviating needless appeals, reversals, and rehearings. See Wilson-Trice v. Trice, 191 S.W.3d 70, 72 (Mo.App. W.D.2006). This rule has been applied to dismiss a variety of allegations of error on the basis that they were not preserved for appellate review due to a failure to raise the issue in a Rule 78.07(c) motion to amend the judgment. See, e.g., Crow, 300 S.W.3d at 566 (failure to make findings regarding child support amount under Rule 88.01); Stuart v. Ford, 292 S.W.3d 508, 517 (Mo.App. S.D.2009) (lack of finding regarding party’s current ability to pay judgment of contempt); In re M.D.D., Jr., 219 S.W.3d 873, 875 (Mo.App. S.D.2007) (failure to make statutorily required findings regarding termination of parental rights); Wilson-Trice, 191 S.W.3d at 72 (failure to make statutorily required findings to support custody award).5

Motions filed pursuant to Rules 29.15 and 24.035 are governed by the rules of civil procedure insofar as applicable. Rule 29.15(a); Rule 24.035(a). If a civil rule hinders the purposes of the post-conviction rules, it does not apply. Thomas v. State, 808 S.W.2d 364, 366 (Mo. banc 1991). If the rule enhances those purposes, or is of neutral consequence, it applies. Id. Therefore, the question is whether Rule 78.07(c) comports with the purposes of Rules 29.15 *784and 24.035 so that it may apply to post-conviction proceedings.

“It is clear that the intent of the framers of Rule 29.15 was to prevent delay, end the use of successive motions, and to discourage ‘sandbagging’ by the movant.” Rohwer v. State, 791 S.W.2d 741, 744 (Mo.App. W.D.1990). The common purpose of Rules 24.035 and 29.15 is “to adjudicate claims concerning the validity of the trial court’s jurisdiction and the legality of the conviction or sentence of the defendant.” Thomas, 808 S.W.2d at 366. The rules have an additional purpose: to avoid “delay in the processing of prisoners[’] claims and prevent the litigation of stale claims.” Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). “To further that purpose, the new rules contain strictly enforced time constraints which, if not followed, procedurally bar consideration of a movant’s claims.” Thomas, 808 S.W.2d at 366. These time limits place a heightened responsibility on a movant, his counsel and the courts to timely litigate claims. Rohwer, 791 S.W.2d at 743.

Given the nature and purpose of post-conviction proceedings, a number of civil rules have been deemed not to apply to post-conviction motions in that those civil rules would hinder the purposes underlying Rules 29.15 and 24.035. See, e.g., Thomas, 808 S.W.2d at 367 (holding that Rule 51.05 permitting a change of judge in a civil action does not apply to post-conviction motions for relief because, in part, the rule would build “in the very delay Rules 24.035 and 29.15 are designed to eliminate”); State v. McMillin, 783 S.W.2d 82, 90 (Mo. banc 1990) (holding that Rule 67.01 permitting the re-filing of a civil case after dismissal without prejudice does not apply because it conflicts with the prohibition against the filing of successive post-conviction claims); Rohwer, 791 S.W.2d at 744 (holding that Rule 55.33(b) providing that issues not raised by the pleadings, but tried by implied consent, are treated as raised in the pleadings is inapplicable in that it is inconsistent with post-conviction rules that clearly state that “a movant who fails to properly assert all grounds for relief in timely filed motions, forfeits any remedy available for additional claims”).

In contrast, Rule 78.07(c) enhances the purposes of Rules 24.035 and 29.15. The interplay between Rule 78.07(c) and Rules 24.035 and 29.15 is more akin to the circumstances in Thomas v. State, 180 S.W.3d 50 (Mo.App. S.D.2005). In that case, the court held that Rule 75.01, which gives the trial court control over a judgment for thirty days after its entry, applied to post-conviction proceedings to allow review of the motion court’s ruling before it becomes final. Id. at 54. Similarly, Rule 78.07(c) aids the purposes underlying post-conviction proceedings in that it affords the motion court the opportunity to expeditiously make corrections, amendments, and modifications to its judgment. Therefore, Rule 78.07(c) should apply to post-conviction proceedings.

Where Hollingshead failed to file a motion to amend the judgment pursuant to Rule 78.07(c), he has preserved nothing for review, and his appeal should be dismissed.

. Additionally, this court has previously noted the applicability of Rule 78.07(c) to post-conviction cases. See Wills v. State, 321 S.W.3d 375, 387 n. 7 (Mo.App. W.D.2010).