             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT
DANIAL M. RINEHART,            )
                    Appellant, )
                               )
v.                             )            WD78708
                               )
STATE OF MISSOURI,             )            FILED: November 1, 2016
                   Respondent. )

                   Appeal from the Circuit Court of Cass County
                     The Honorable William B. Collins, Judge

     Before Division One: Anthony Rex Gabbert, P.J., and Thomas H. Newton
                              and Alok Ahuja, JJ.
      Daniel Rinehart was convicted in the Circuit Court of Cass County of felony

murder in the second degree, child endangerment in the first degree, statutory rape

in the second degree, two counts of incest, and two counts of abandonment of a

corpse. The charges stemmed from Rinehart’s long-standing sexual relationship

with one of his daughters, which produced four children, three of whom died

without receiving medical care. Rinehart’s convictions were affirmed by this Court

on November 13, 2012. State v. Rinehart, 383 S.W.3d 95 (Mo. App. W.D. 2012).

Our mandate issued on December 5, 2012.

      Rinehart filed a pro se motion for post-conviction relief under Supreme Court

Rule 29.15 on March 7, 2013. Counsel was appointed and an amended motion was

filed on June 17, 2013. After an evidentiary hearing, the circuit court denied the

motion on the merits on April 30, 2015. Rinehart appeals.
      The State argues that Rinehart’s initial pro se post-conviction relief motion

was untimely, and that the circuit court therefore had no authority to address the

merits of Rinehart’s post-conviction claims. We agree.

             In a motion filed pursuant to Rule 29.15, the movant must
      allege facts showing a basis for relief to entitle the movant to an
      evidentiary hearing. The movant also must allege facts establishing
      that the motion is timely filed. The movant then must prove his
      allegations. Rule 29.15(i); Rule 24.035(i) (“The movant has the burden
      of proving the movant’s claims for relief by a preponderance of the
      evidence.”). In addition to proving his substantive claims, the movant
      must show he filed his motion within the time limits provided in the
      Rules. The movant must allege facts showing he timely filed his
      motion and meet his burden of proof by either: (1) timely filing the
      original pro se motion so that the time stamp on the file reflects that it
      is within the time limits proscribed in the Rule; (2) alleging and
      proving by a preponderance of the evidence in his motion that he falls
      within a recognized exception to the time limits; or (3) alleging and
      proving by a preponderance of the evidence in his amended motion
      that the court misfiled the motion.
Dorris v. State, 360 S.W.3d 260, 267 (Mo. banc 2012) (citations omitted).
      The State did not argue in the circuit court that Rinehart’s motion was

untimely, and the circuit court did not address the issue. Nevertheless, Dorris held

that “[i]t is the court’s duty to enforce the mandatory time limits and the resulting

complete waiver in the post-conviction rules – even if the State does not raise the

issue.” Id. at 268.
      Given the issuance of our mandate on December 5, 2012, Rinehart’s initial

pro se Rule 29.15 motion was due no later than Tuesday, March 5, 2013. Rule
29.15(b). The file stamp on Rinehart’s original motion is dated March 7, 2013,

however.

      Rinehart acknowledges in his Reply Brief that the motion appears to be

untimely based on the time stamp affixed by the circuit court. He argues, however,

that we should remand the case to the circuit court to determine whether or not his
motion was timely. Rinehart contends that the timeliness of his motion “is not




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completely clear from the record,” based on three circumstances: (1) the fact that

the trial court proceeded to address the merits of Rinehart’s post-conviction claims

without questioning the timeliness of his initial motion; (2) the fact that the copy of

the motion sent to the Public Defender’s office on March 18, 2013, did not bear a file

stamp; and (3) the fact that Rinehart’s signature on the motion was notarized on

February 27, 2013.

         Neither Rinehart’s pro se motion, nor his amended motion, alleged facts to

demonstrate that his initial motion was timely, or that he fell within one of the

exceptions to the time limits recognized in Dorris. Even assuming that Rinehart

could allege such facts for the first time on appeal, none of the circumstances

described in Rinehart’s Reply Brief establishes a colorable basis to find that his pro

se motion was timely, or that the untimeliness of the motion should be excused.
First, although the circuit court addressed Rinehart’s post-conviction claims on the
merits, the court simply did not consider the timeliness of Rinehart’s initial pro se

motion (presumably because the State did not raise the issue). The circuit court’s

merits disposition does not constitute an implicit finding that Rinehart’s initial

motion was timely filed; indeed, the circuit court’s order explicitly finds that

Rinehart filed his original motion on March 7, 2013 – two days late. Second, the
lack of a file stamp on the copy of Rinehart’s motion provided to the Public Defender

likewise tells us nothing concerning the accuracy of the file stamp on the original

motion retained in the court file. Finally, the fact that Rinehart may have executed

the pro se motion on February 27, 2013, without more, does not tend to prove when

he actually dispatched the motion to the circuit court, much less when the court

received it (or how the court processed the motion upon receipt). None of the

circumstances discussed in Rinehart’s Reply Brief justifies a remand to the circuit

court.




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      Because Rinehart’s pro se motion was untimely, “the motion court lacked

authority to review the merits of [his] claim and should have dismissed the motion

as untimely.” Dudley v. State, 459 S.W.3d 499, 502 (Mo. App. W.D. 2015); accord,

Green v. State, 481 S.W.3d 589, 591-92 (Mo. App. S.D. 2015); Lenoir v. State, 475
S.W.3d 139, 142 (Mo. App. E.D. 2014). We accordingly vacate the circuit court’s

order and remand with directions to dismiss Rinehart’s pro se motion as untimely.




                                             Alok Ahuja, Judge
All concur.




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