State v. McGee

¶1INTRODUCTION

¶2Kelvin McGee (“Movant”) appeals from the judgment of the Circuit Court of the City of St. Louis denying his post-conviction motion for “review for plain error” under Missouri Supreme Court Rules 29.05, 29.12(b), and 74.06. Movant contends the motion court plainly erred in denying his motion, because the trial court imposed an excessive sentence of imprisonment not authorized by law. Because Movant failed to bring reviewable claims, we dismiss this appeal.

¶3FACTS AND PROCEDURAL HISTORY

¶4Movant entered a plea of guilty to three . counts of forcible rape, a felony under section 566.030 RSMo 1986. The court sentenced Movant to forty years’ imprisonment on each of the three counts, served concurrently. The court told Movant he had ninety days once he began his incarceration at the Department of Corrections to file a motion to vacate or set aside the sentence and warned him that after those ninety days he would lose the right to file a motion to vacate or set aside his sentences.1

¶5Approximately nine years later, Movant filed a pro se petition seeking the modification or reduction of his sentences. The motion court said the claim was without merit and that the exclusive remedy for Movant’s claim was a motion pursuant to Rule 24.035, which Movant had waived because the time limit for filing expired. The motion court denied the petition.

¶6Two years later, Movant filed a pro se motion seeking plain error review and/or review under Rules 29.05 and 29.12. The court reviewed Movant’s motion and denied it because Movant’s exclusive remedy under Rule 24.035 had expired and because the claim was without merit. Mov-ant appeals.

¶7DISCUSSION

¶8Movant filed his appeal under Rules 29.05, 29.12(b), and 74.06. These rules provide no basis for our review.

¶9Rule 29.05 only applies to cases where the jury assessed a defendant’s sentence. State ex rel. Scroggins v. Kellogg, 311 S.W.3d 293, 296 (Mo.App. W.D.2010). If the defendant pled guilty and the trial court assessed the sentence, then the court lacks authority to reduce the sentence. Id. Here, Movant pled guilty, so the mo*261tion court did not have authority to review under Rule 29.05. Because the motion court lacked authority to consider the merits of the case, we have no authority to review.

¶10Likewise, this Court recognizes that “Rule 29.12(b) does not provide an independent basis under which a person convicted of a crime can subsequently challenge his conviction or sentence.” Harris v. State, 48 S.W.3d 71, 71-72 (Mo.App. W.D.2001); See Vernor v. State, 30 S.W.3d 196, 197 (Mo.App. E.D.2000) (holding no statutory authority provides a right to appeal under Rule 29.12(b)). Without an independent basis for Movant’s motion, there is not an appealable judgment. State v. Green, 232 S.W.3d 672, 673 (Mo.App. E.D.2007).

¶11Finally, Rule 74.06(b) does not provide a cause of action for attacking a criminal judgment, and “is not intended as an alternative to a timely appeal.” Vicory v. State, 117 S.W.3d 158, 160 (Mo.App. S.D.2003); Scroggins, 311 S.W.3d at 294; Love v. Bd. Of Police Comm’rs, 943 S.W.2d 862, 863 (Mo.App. E.D.1997). Thus, Movant’s motion presents no basis upon which this court may consider his appeal.

¶12Moreover, in denying Movant’s petition seeking modification or reduction of his sentence, the motion court correctly explained: “The exclusive remedy for defendant’s claim, that his sentences violate the relevant statutes, is a motion for post-conviction relief pursuant to Rule 24.035.” When Movant filed the instant motion, the time limit for filing a Rule 24.035 motion had expired nine years prior. The time limits in Rule 24.035 are mandatory. Swofford v. State, 323 S.W.3d 60, 62-64 (Mo.App. E.D.2010). Thus, Movant’s motion would have been barred even if he had filed under the correct rule.2

¶13CONCLUSION

¶14Because Movant failed to bring renewable claims, the Court does not have the authority to review this appeal. Accordingly, Movant’s appeal is dismissed.