Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF LACLEDE COUNTY Honorable Stanley
Moore, Circuit Judge.
Bates, P.J., Burrell, J., and Sheffield, C.J.
Williams (Williams) appeals from the motion court's order
denying Williams' amended Rule 29.15 post-conviction
motion after an evidentiary hearing. Because the amended motion
was not timely filed and the motion court did not conduct an
independent inquiry into abandonment by counsel, we reverse
and remand for further proceedings.
forth only those facts necessary to complete our review.
Williams was convicted by a jury of three counts of
first-degree statutory rape and one count of first-degree
statutory sodomy. See §§ 566.032, 566.062.
The trial court imposed concurrent sentences of 20 years'
imprisonment for each rape count and 45 years for the sodomy
count. This Court affirmed Williams' convictions and
sentences on appeal. See State v. Williams, 329
S.W.3d 700 (Mo. App. 2010). Mandate issued on January 25,
2011. On March 31, 2011, Williams filed a timely pro
se Rule 29.15 motion to vacate, set aside, or correct
his convictions. See Rule 29.15(b) (requiring the
initial motion to be filed within 90 days after appellate
court mandate is issued).
April 18, 2011, the motion court appointed counsel. On May
16, 2011, the motion court granted counsel's request for
an additional 30 days to file the amended motion.
See Rule 29.15(g). Counsel filed the amended motion
on Tuesday, July 19, 2011. Thereafter, the motion court
conducted an evidentiary hearing and denied Williams'
amended Rule 29.15 motion on the merits. This appeal
compelled, per Moore v. State, 458 S.W.3d 822, 825
(Mo. banc 2015), to independently determine whether
Williams' amended Rule 29.15 motion for post-conviction
relief was timely filed. See Wright v. State, 488
S.W.3d 263, 264 (Mo. App. 2016); Laub v.
State, 481 S.W.3d 579, 583 (Mo. App. 2015). Rule
29.15(g) governs the determination of the allowable time
period for counsel to file an amended motion. In relevant
part, that subpart of the rule states:
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
court is issued and an entry of appearance is filed by any
counsel that is not appointed but enters an appearance on
behalf of movant. The court may extend the time for filing
the amended motion for one additional period not to exceed
Id. Mandate had issued and counsel had been
appointed as of April 18, 2011. The motion court granted
counsel an additional 30 days to file the amended motion.
Therefore, counsel had 90 days after April 18, 2011, to file
the amended motion. That 90-day time period ended on Sunday,
July 17, 2011. Because the last day was a Sunday, the actual
deadline for filing the amended motion was extended to
Monday, July 18, 2011. See Rule 44.01(a). The
amended motion was filed Tuesday, July 19, 2011, which was
one day too late.
appointed counsel files an untimely amended motion, a
presumption of abandonment arises. See Moore, 458
S.W.3d at 825. Therefore, the motion court was required to
conduct an independent inquiry into whether Williams was
abandoned by appointed counsel. Because no such inquiry was
conducted, we must reverse the motion court's order.
See Wright, 488 S.W.3d at 264. We remand the matter
for an independent inquiry into abandonment and further
proceedings consistent with the motion court's decision
on that issue. See id.
JEFFREY W. BATES, P.J.
concur in the per curiam opinion. I write separately
to offer the following two suggestions.
Moore v. State, 458 S.W.3d 822 (Mo. banc 2015), had
not yet been decided when the amended motion was filed and
evidentiary hearing was conducted in this case.
Moore had been handed down, however, before the
order denying relief was entered. The untimeliness of the
filing of the amended motion was first raised by this Court
on its own motion during the appeal while conducting the
required Moore timeliness review. So long as a mere
one-day delay can trigger what has happened here, I urge
judges and counsel at the motion court level to check the
timeliness of pro se and amended PCR filings and
address any problems there. This one-day delay occurred more
than five years ago, but Moore and its progeny
require this Court to reverse outright and remand for an
independent inquiry into abandonment. An appellate court
cannot do otherwise even if the movant or both parties
implore the court to try something involving less delay.
See, e.g., Mann v. State, 475 S.W.3d 208,
211-13 (Mo. App. 2015) (denying a request to stay the appeal
pending the outcome of motion court's abandonment
inquiry); Lomax v. State, 471 S.W.3d 358, 359 (Mo.
App. 2015) (same holding). Although the issues raised by the
amended motion were fully adjudicated by the motion court and
fully addressed in the parties' appellate briefs, we are
prohibited from reaching the merits. All of the time, effort and
expense devoted to this case since 2011 may have been wasted.
We see this occur far too often, and no one is the better for
it - not the courts, the lawyers, and certainly not the
movants. It is, therefore, in everyone's interest for
judges and lawyers in the motion courts to identify and
address any Moore problems there. See,
e.g., Gale v. State, ___S.W.3d___, 2016 WL
3569416, at *2 (Mo. App. S.D. June 30, 2016) (because the
motion court conducted an independent inquiry on abandonment
and permitted the untimely filing of the amended motion, the
appeal could be decided on the merits).
the timing requirements for amended motions in Rule 29.15 or
Rule 24.035 proceedings are established by rule. The amount
of judicial resources expended to determine timeliness, and
the consequences when it is absent, make me wonder whether
these rules could be revised to better address the timeliness
issue. I leave it to others to ponder whether that could take
the form of allowing more than one 30-day extension to file
the amended motion, removing the requirement that courts
enforce the timing rules when the parties do not raise the
issue, requiring prejudice due to the untimely filing as a
condition for ...