Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County Hon. Robert S.
G. DOWD, JR, Judge.
Thomas ("Movant") appeals from the judgment denying
his Rule 24.035 motion without a hearing. We reverse and
compelled under Moore v. State to examine the
timeliness of amended motions in each post-conviction case on
appeal, even if the issue is not raised by either party. 458
S.W.3d 822 (Mo. banc 2015). Rule 24.035(g) provides that
where, as here, no 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 a complete transcript consisting of the
guilty plea and sentencing hearing has been filed in the
trial court and counsel is appointed or (2) the date both a
complete transcript has been filed in the trial court and an
entry of appearance is filed by any counsel that is not
appointed but enters an appearance on behalf of movant."
The court has authority to grant one thirty-day
extension under Rule 24.035(g).
Movant timely filed a pro se motion, and the court appointed
"the appellate public defender" on May 12, 2015. An
attorney from the public defender's post-conviction
"office B" entered his appearance and was granted
an additional thirty days to file the amended motion. The
transcript of the guilty plea and sentencing were not filed
in the trial court until July 7, 2015. Thus, the amended
motion was due on or before October 5, 2015.
September 25, 2015, appointed counsel filed a motion
asserting that "[a]fter an initial review of the
transcripts and case files, " he discovered a conflict
of interest in his representation of Movant because he also
represented Movant's co-defendant. It appears counsel had
entered his appearance in the co-defendant's appeal on
July 2, 2015. He moved to withdraw from Movant's case and
also sought to have the original order of appointment vacated
so that an attorney from a different public defender's
office could be appointed. He also asked for another
thirty-day extension of time for new counsel to file an
amended motion. On September 29, 2015, the court entered an
order as follows: counsel was allowed to withdraw and the
case was reassigned to "another" public defender;
the previous order of appointment was vacated; the court
"reappointed" the public defender's
post-conviction "office A"; and an additional
thirty-day extension was granted. Believing she had 90 days
from the date of the new appointment order, new counsel filed
the amended motion on December 28, 2015. The court denied
that motion without an evidentiary hearing or any discussion
of the timeliness of the amended motion.
to the impression the court and counsel appear to have been
under, the withdrawal and transfer of a post-conviction case
from one office of the public defender to another due to a
conflict of interest does not affect the time limits for
filing an amended motion. State v. Isaiah, 874
S.W.2d 429, 435 (Mo. App. W.D. 1994) (citing State v. Hill,
808 S.W.2d 882, 893 (Mo. App. E.D. 1991)). It was the
appointment of the office of the public defender-not the
individual attorney-that triggered the time periods in the
post-conviction rules. See Hill, 808 S.W.2d at 893.
Thus, the time period for filing the amended motion did not
begin anew when one lawyer withdrew and a different lawyer
entered an appearance. See State v. White, 873
S.W.2d 590, 595-96 (Mo. banc 1994) (second appointed
counsel's amended motion filed days after deadline not
timely). Nor did the rescission of an original appointment
order and new order of appointment restart the time periods
set forth in Rule 24.035 or otherwise relieve the public
defender's office of its duties under Rule 24.035(e).
Vogl v. State, 437 S.W.3d 218, 229-30 (Mo. banc
2014) (appointed counsel's request, whether characterized
as motion to rescind appointment or motion to withdraw, did
not relieve counsel of duties under Rule 24.035). Moreover,
the grant of an additional thirty-day extension was clearly
prohibited by the rule. See White, 873 S.W.2d at 595
(by granting second counsel's request for extension of
time after first counsel already received extension, motion
court exceeded its jurisdiction).
these circumstances, the amended motion remained due on
October 5, 2015, even after new counsel was appointed, and
the motion filed in December of 2015 was untimely. Because
the motion court did not conduct an independent inquiry into
abandonment, we must remand to the motion court for such
inquiry. Moore, 458 S.W.3d at 826. It is our duty to
enforce the mandatory timelines in the post-conviction rules,
but "the motion court is the appropriate forum to
conduct such an inquiry" into abandonment. Id. The result of that inquiry
will determine which motion-the pro se or the amended
motion-the court should adjudicate. Id. Because the
motion court did not already adjudicate the claims in the pro
se motion, remand in this case is not pointless. See
id. at 826, n3.
judgment is reversed, and the case is remanded for
proceedings consistent with this opinion.
T Quigless, PJ and Lisa S Van Amburg, J, concur.
 We do note, however, that "[a]n
attorney should not withdraw so close to the filing date that
the second counsel has insufficient time to meet all the
requirements of [the Rule]." White, 873 S.W.2d
at 597. While the conflict of interest may not have been
reasonably discoverable until July of 2015 (when counsel
began representing Movant's co-defendant) it is unclear
what caused the two-month delay in reporting the conflict ...