Court of Appeals of Missouri, Eastern District, First Division
PAUL C. WHITE, Movant/Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of St. Charles County 1411-CC00538
Honorable Richard Zerr.
K. HOFF, JUDGE.
White ("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.
2012 jury trial, Movant was found guilty of first-degree
murder (in violation of Section 565.020, RSMo
2000) and one count of first-degree robbery
(Section 569.020). On September 17, 2012, the trial court
sentenced Movant, as a prior offender, to consecutive life
sentences. Movant took a direct appeal, and this court
affirmed the trial court's judgment. See State v.
White, 421 S.W.3d 560 (Mo. App. E.D. 2014). Our mandate
issued on March 19, 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 June 2, 2014. On June 12, 2014, the
motion court appointed the public defender to represent
Movant. Movant's post-conviction attorney entered his
appearance on August 6, 2014, and filed a contemporaneous
motion for a 30-day extension of time in which to file an
amended motion. The motion court made no express ruling on
the motion. Post-conviction counsel filed an amended Rule
29.15 motion on September 10, 2014.
2015, the motion court held an evidentiary hearing on the
amended motion. On September 29, 2015, the motion court
denied the amended motion in its entirety. This timely appeal
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."). Rule 29.15(b) requires that an initial
motion for post-conviction relief be filed within 90 days
after the date of the appellate court's mandate affirming
the judgment or sentence. The proscription against untimely
amended motions for post-conviction relief 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 days.
Rule 29.15(g) (emphasis here).
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. 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.
Movant's amended motion was untimely filed. Our mandate
in his direct appeal was issued on March 19, 2014. Movant
timely filed his pro se motion on June 2, 2014 and
his post-conviction attorney was appointed ten days later,
setting the deadline for his amended motion as August 11,
2014. Though post-conviction counsel moved for an extension
of time, none was ever granted. We have held that
"[w]hen post-conviction counsel requests additional time
to file an amended motion, the motion court must
expressly grant or deny said request."
Huffman v. State, 493 S.W.3d 892, 895 (Mo. App. E.D.
2016) (citing Adams v. State, 483 S.W.3d 480, 484
(Mo. App. E.D. 2016)) (emphasis added). We cannot presume the
motion court granted an extension "without a record
thereof, " id., so the initial deadline of
August 11 was, for the purposes of this appeal, never
extended. Accordingly, Movant's amended Rule 29.15
motion, filed on September 10, 2014, was untimely.
amended motion was untimely filed and the motion court did
not conduct an independent inquiry regarding abandonment. As
the Supreme Court did in Moore, we reverse the
judgment of the motion court ...