Motion improperly denied after documents were lost

A man's Rule 29.15 was improperly denied after the circuit court found it to have been untimely filed after his motion had been misplaced by the circuit clerk's office.

Mark E. Broom, who had been convicted of one count first degree murder, one count first degree assault and two counts armed criminal action, filed a Rule 29.15 motion seeking post-conviction relief. Broom sent the envelope via certified mail November 27, 2000. The return receipt noted the package was received by the clerk's office November 30, 2000.

Four months later, Broom contacted the clerk's office to check the status of his motion. The director of civil records informed him that the staff could not locate his paperwork and suggested a copy of his pleading be provided to the office. The director then told Broom his document would go before the judge for consideration of post-dating the file stamp to November 27, 2000. Instead, upon receipt of the document, despite a note from Broom on the envelope requesting it not be file stamped, the motion was file stamped June 6, 2001.

The state then filed a motion against Broom requesting his motion be dismissed as it was untimely filed. The court dismissed the motion.

Broom appealed and the Missouri Court of Appeals for the Western District remanded the case, finding Broom provided sufficient proof he had timely filed his motion. The return receipt he submitted to the appellate court verified that an employee of the clerk's office had signed for the package November 30, 2000.

The state argued Broom had not proven the motion was actually in the package. The appellate court dismissed this argument, finding it required Broom to prove elements he would not otherwise be required to prove.

"While, arguably, implicit in Broom's burden of proving timeliness is the requirement that he show that the motion was actually filed, the state is placing the blame on the loss of the documents and the burden of establishing their existence on Broom," Judge Harold Lowenstein wrote. "This court does not believe that that is proper once an individual has 'filed' the documents. The error or mistake was that of the clerk's office, not Broom's."

The appellate court reviewed Broom's return receipt for the certified package, and found the receipt showed Broom had sent the package November 27, and it was received by the clerk's office November 30, 2000, within Broom's time restraints. The court also noted that the amount of postage, $2.09, indicated there were documents in the package received by the clerk's office. Evidence was also presented that Broom followed up with his filing and found the documents had been misplaced.

"To say that he should have indicated on the certified mail receipt precisely what was contained in the envelope is asking him to have done something that is not normally done & or is expecting him to anticipate the loss of the document after delivery, which was no fault of his own," Judge Lowenstein wrote.

The appellate court remanded the case, finding Broom's submission of the return receipt as evidence was sufficient to prove he filed his 29.15 motion in a timely manner.

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