 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Dorsey v. State3/8/2005
n this case, the court had already granted the ten-day extension. The motion was then filed seven days after the conclusion of the extension, or thirty-two days after the verdict.
The trial court had no authority to act on a motion for new trial filed thirty-two days after the verdict. See State v. Jackson, 925 S.W.2d 856, 860 (Mo. App. 1996); State v. Garner, 976 S.W.2d 57, 60 (Mo. App. 1998). The court also lacked authority to order a new trial even on its own initiative more than thirty days after the verdict. See Rule 29.13. Thus, the late filing of the motion for new trial in this case was so late as to preclude the court from granting relief even if the court at that point believed there were good grounds to do so.
Trial counsel's testimony at the post-conviction hearing concerning the juror misconduct issue did not inspire confidence. Counsel did not offer a strategic reason for failing to conduct his own investigation of the juror misconduct issue. Counsel offered no testimony that he legally researched the juror misconduct issue, or that he had a strategic reason for failure to present evidence and legal authorities in support of the motion. Appellate counsel testified that she had no knowledge of the memoranda supporting the juror misconduct reference in the motion for new trial because the law clerk memorandum and the assistant prosecutor memorandum were not attached to the motion for new trial. Appellate counsel also testified that if she had known of the existence of these documents, she would have raised the matter of juror misconduct on direct appeal even though (because of the untimeliness of the motion for new trial) it would have been reviewable only for plain error under Rule 30.20.
When questioned about his statement urging the jury to find Dorsey guilty of forcible sodomy, defense counsel testified that he believed the evidence supported a finding of guilt on that charge. He stated that his trial strategy was to maintain his credibility with the jury by giving them something to convict Dorsey of in hopes they would acquit on the other charges.
The motion court entered its findings of fact, conclusions of law, and judgment, denying Dorsey's claims for post-conviction relief. This appeal follows.
Standard of Review
Our review is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). Findings and conclusions are clearly erroneous only if, after review of the entire record, the court is left with a definite and firm impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). The movant bears the burden of proving his post-conviction claims by a preponderance of the evidence. Rule 29.15(i).
Arguments
Dorsey brings five claims of error on appeal: two relate to ineffective assistance of trial counsel, one relates to ineffective assistance of appellate counsel, and two are allegations of post-conviction court error. Because we find that Dorsey's claims of ineffective assistance of trial counsel warrant a new trial, it is unnecessary to address his other arguments.
Ineffective Assistance
In his first claim, Dorsey argues that the motion court clearly erred in finding that he was not prejudiced by trial counsel's ineffectiveness in failing to timely file a motion for new trial. In a related argument, Dorsey contends that the motion court clearly erred in failing to rule on his claim that trial counsel was ineffective in failing to present evidence of juror misconduct at the new trial hearing. We will consider these interconnected arguments together.
Page 1 2 3 4 5 6 7 8 Missouri Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|