Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Gayle L.
IN PART AND REMANDED WITH DIRECTIONS
Glenn Latham ("Movant") appeals the motion
court's denial on the merits of a post-conviction claim
raised for the first time in an untimely amended Rule 24.035
motion. Because the time limits
imposed by Rule 24.035 are mandatory, we affirm the motion
court's denial of post-conviction relief based upon the
unchallenged findings and conclusions related to the claims
raised in Movant's original pro se motion, but
we remand the matter and direct the motion court to enter an
order dismissing Movant's time-barred amended motion and
enter amended findings and conclusions that omit any
reference to the untimely claim.
pleaded guilty to the class-A felony of second-degree drug
trafficking, see section 195.223, for possessing
"6 grams or more of a mixture or substance containing a
cocaine base, a controlled substance, knowing of its presence
and nature." After initially suspending the execution of
a fifteen-year sentence, the plea court later executed that
sentence after finding that Movant had violated the terms of
his probation. Movant was delivered to the Department of
Corrections to begin serving his sentence on August 12, 2013.
November 20, 2013, Movant timely filed a pro se Rule
24.035 motion to vacate, set aside, or correct the judgment
and sentence ("the first motion"). See
Rule 24.035(b). The motion court
appointed the public defender's office to represent
Movant on December 11, 2013. The transcript of Movant's
guilty plea was filed on March 25, 2014, and Movant had sixty
days from that date to file any amended Rule 24.035 motion.
See Rule 24.035(g). On June 20, 2014, after the
sixty-day deadline for filing an amended motion had passed,
post-conviction counsel filed a statement "of his
intention to not file an amended motion for post[-]conviction
relief pursuant to Rule 24.035(e) ["statement in
lieu".]" The statement in lieu averred that after
having reviewed the pertinent documentation and interviewing
Movant by telephone, post-conviction counsel had determined
that there was "no additional legal or factual basis to
amend [the] claims" set forth in the first
motion. On June 23, 2014, three days
after the filing date of the statement in lieu, Movant filed
a pro se amended Rule 24.035 motion ("the
motion court held an evidentiary hearing on all of
Movant's claims and subsequently entered a judgment
denying "all relief sought[.]"
appeal, Movant attempts to challenge the motion court's
denial of post-conviction relief based solely on an
allegation contained only in the second motion. That claim is
that Movant's plea counsel "was ineffective for
allowing [Movant] to plead guilty to the criminal offense of
trafficking" because the State's evidence did not
provide a factual basis for the charged offense.
Specifically, Movant refers to a laboratory report he says
proves that Movant possessed not "cocaine base[, ]"
as charged in the felony information, but rather cocaine
salt. We cannot reach the merits of that claim
because the motion containing it was not timely filed and
should have been dismissed for that reason by the motion
of the Second Motion
relevant here, an amended motion seeking post-conviction
relief "shall be filed within sixty days of the
earlier of . . . 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[.]"
Rule 24.035(g) (emphasis added). Both prerequisites were met
on March 25, 2014. Rule 24.035(g) also provides that
"[t]he court may extend the time for filing the
amended motion for one additional period not to exceed thirty
days." (Emphasis added). However, Movant admits in his
brief that no such extension was granted. The second motion was therefore due no
later than May 27, 2014,  and it was not filed until June 23, 2014 -
several weeks after the deadline had passed. Therefore, the
amended pro se motion was untimely. See Johnson
v. State, 210 S.W.3d 427, 432 (Mo. App. S.D. 2006) (an
amended pro se motion must be timely filed so as to
vest the motion court with jurisdiction to adjudicate the
additional claims); Oliver v. State, 196 S.W.3d 643,
645 (Mo. App. S.D. 2006) (same holding); Rutherford v.
State, 192 S.W.3d 746, 748-49 (Mo. App. S.D. 2006) (same
contends in the argument portion of his brief that the second
motion "should be treated as timely"
notwithstanding the explicit time limits of Rule 24.035(g)
based on the following rationale: post-conviction counsel
filed a statement in lieu of an amended motion pursuant to
Rule 24.035(e); Rule 24.035(e) allows a movant to file a
"reply" to a statement in lieu "not later than
ten days after the statement is filed"; therefore,
because post-conviction counsel filed a statement on June 20,
2014, and Movant filed the second motion on June 23, 2014
(within ten days of the filing of the statement in lieu), the
second motion was timely. We disagree.
problem with Movant's argument is that it conflicts with
the language of Rule 24.035(g). The time limits governing
post-conviction relief motions are mandatory. Stanley v.
State, 420 S.W.3d 532, 540 (Mo. banc 2014). As to
amended motions, our high court has observed that
"[a]rguments raised for the first time in a second
amended motion filed after the time limit set out in Rule
24.035(g) are barred from consideration." Id.
Movant cites no authority for the proposition that the
provisions in Rule 24.035(e) act to enlarge the
mandatory time limits for the filing of amended
motions set forth in Rule 24.035(g), and we can find no such
authority. Accordingly, we hold that the second motion was
not timely filed.
untimely amended motion may be considered on its merits only
if one of the ...