Court of Appeals of Missouri, Eastern District, First Division
KENITH R. WILSON, Movant/Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of St. Louis County 14SL-CC03549
Honorable Richard C. Bresnahan
K. HOFF, JUDGE.
Wilson ("Movant") appeals from the motion
court's entry of judgment denying, after an evidentiary
hearing, his amended Rule 29.15 motion for post-conviction
relief. Because the motion court did not conduct an
independent abandonment inquiry, we reverse and remand.
begin with the case's procedural background, since
Movant's amended Rule 29.15 motion was untimely filed and
post-conviction deadlines play "an important role in the
orderly presentation and resolution of post-conviction
claims." Price v. State, 422 S.W.3d 292, 297
(Mo. banc 2014). After a jury trial in October 2012, Movant
was found guilty of one count of first degree robbery (in
violation of Section 569.020, RSMo 2000) and one count of armed criminal action
(Section 571.015). On November 9, 2012, the trial court
sentenced Movant, as a prior offender, to twenty-five
years' imprisonment. Movant took a direct appeal, and
this court affirmed the trial court's judgment. See
Wilson v. State, 437 S.W.3d 830 (Mo. App. E.D. 2014).
Our mandate issued on August 5, 2014.
to Rule 29.15, which allows a convicted offender to challenge
his conviction or sentence after trial, Movant filed a
pro se motion on October 3, 2014. On either October
22 or October 23, 2014, the motion court appointed the public
defender to represent Movant.Movant's first post-conviction attorney
entered her appearance on November 13, 2014, and filed a
concomitant motion for a 30-day extension of time. The motion
court granted the continuance.
December 22, 2014, Movant's appointed counsel moved to
withdraw her representation and for another 30-day
continuance. The motion court granted both motions, and a
second public defender filed her appearance on January 6,
2014. Movant's second attorney immediately moved to
"clarify" the deadline for the amended Rule 29.15
motion, and asked that the trial court set a deadline 90 days
from the date she was appointed. The motion court granted the
motion and set a new deadline: March 31, 2015. Movant's
second attorney filed an Amended Rule 29.15 motion on that
noted above, the time limits for filing a Rule 29.15 motion
for post-conviction relief are mandatory. Eastburn v.
State, 400 S.W.3d 770, 773 (Mo. banc 2013). Failing to
abide by the Rule's confines generally functions as a
complete waiver. Id.; see also Harper v.
State, 404 S.W.3d 378, 385 (Mo. App. S.D. 2013)
("[W]here a post-conviction motion is untimely filed,
the motion court has no authority to consider it, and it must
be dismissed."). The proscription against late
post-conviction relief motions is found in Rule 29.15(g),
which provides in pertinent part:
. . . If an appeal of the judgment sought to be vacated, set
aside, or corrected is taken,  the amended motion shall be filed within
sixty days of the earlier of: (1) the date both the mandate
of the appellate court is issued and counsel is appointed or
(2) the date both the mandate of the appellate counsel is
issued and an entry of appearance is filed by any counsel
that is not appointed but enters an appearance on behalf of
the movant. The court may extend the time for filing the
amended motion for one additional period not to exceed thirty
Rule 29.15(g) (emphasis here).
the Supreme Court of Missouri has recognized a narrow
exception to Rule 29.15's deadlines. When post-conviction
counsel is appointed to an indigent movant, an amended motion
filed beyond the Rule 29.15(g) deadline can constitute
"abandonment" of the movant. Moore v.
State, 458 S.W.3d 822, 825 (Mo. banc 2015). Abandonment
by appointed counsel extends the time limitations for filing
an amended Rule 29.15 motion. Id. While Movant does
not address the issue of abandonment, the State's
position is that this court should either affirm the motion
or remand to the trial court for an abandonment
the State had not raised the abandonment issue, we are
duty-bound to address it. Price v State, 422 S.W.3d
292, 297 (Mo. banc 2014); Lomax v. State, 471 S.W.3d
358, 359 (Mo. App. E.D. 2015). If post-conviction counsel
untimely filed an amended Rule 29.15 motion and the motion
court did not conduct an independent inquiry into
abandonment, then we must remand the case to the motion court
for such an inquiry. Miller v. State, 478 S.W.3d at
533-34 (Mo. App. E.D. 2015). "The motion court is the
appropriate forum to conduct such an inquiry."
Moore, 458 S.W.3d at 826.
it is clear that Movant's amended Rule 29.15 motion was
untimely filed. The motion court appointed counsel for Movant
on October 22 or October 23, 2014, thereby starting Rule
29.15(g)'s initial 60-day clock. See Stanley v.
State, 420 S.W.3d 532, 540 (Mo. banc 2014) ("[T]he
effective date of appointment of counsel is the date on which
the office of the public defender is designated rather than
the date of counsel's entry of appearance.").
Whether the clock started on October 22 or 23 is irrelevant:
sixty days from October 22 was Sunday, December 21, so in
either case the amended motion was due Monday, December ...