Court of Appeals of Missouri, Eastern District, First Division
TERRANCE T. NORMAN, Movant/Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of St. Charles County 1411-CC00860
Honorable Jon A. Cunningham
K. Hoff, Judge
T. Norman ("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.
December 2012 jury trial, Movant was found guilty of
first-degree robbery in violation of Section
569.020. On February 11, 2013, the trial court
sentenced Movant to twenty-five years' imprisonment. The
written sentence indicated that Movant was a "dangerous
offender" under Section 558.016. Movant took a direct
appeal, and this court affirmed the judgment, though we
modified it by ordering that any reference of Movant as a
dangerous offender be deleted. State v. Norman, 431
S.W.3d 563, 572 (Mo. App. E.D. 2014). Our mandate issued on
June 13, 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 September 8, 2014. On October 10,
2014, the motion court appointed the public defender to
represent Movant. Movant's post-conviction attorney
entered his appearance on October 28, 2014, and filed a
contemporaneous motion for an extension of time (until
January 8, 2015) in which to file an amended motion. The
motion court did not rule on counsel's first request for
an extension. During a November 2014 status conference,
counsel made a second, oral motion for an extension through
December 17, 2014. The second motion was granted. On December
17, 2014, post-conviction counsel made a third motion for an
extension, again requesting a deadline of January 8, 2015.
Though the motion court made no ruling on the third request,
counsel filed Movant's amended motion for post-conviction
relief on January 8, 2015.
2015, the motion court held an evidentiary hearing on the
amended motion. On August 27, 2015, the motion court denied
the amended motion in its entirety, addressing each
substantive point as enumerated in Movant's amended
motion and ignoring the substance of Movant's original
pro se motion. This timely appeal followed.
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 originally due on December 9,
2014. While post-conviction counsel secured an extension of
the deadline until December 17, the motion court never ruled
on counsel's subsequent motion to extend the deadline
again until January 8, 2015, the day Movant's amended
motion was filed. 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 December 17 deadline was,
for the purposes of this appeal, never extended. Moreover,
the motion court lacked the power to extend the deadline a
second time: our Supreme Court "has made clear that one
and only one extension of the deadline is permissible."
Wilson v. State, 495 S.W.3d 827, 830 (Mo. App. E.D.
2016); Rule 29.15(g) ("The court may extend the time for
filing the amended motion for one additional period
…") (emphasis added). Accordingly, Movant's
amended Rule 29.15 motion, filed on January 8, 2015, was
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 ...