Court of Appeals of Missouri, Eastern District, Fourth Division
MARIO G. RHODES, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of the City of St. Louis 1522-CC00267
Honorable Steven R. Ohmer
M. Gaertner, Jr. Judge.
G. Rhodes (Movant) appeals the motion court's denial of
his motion for postconviction relief under Rule
24.035 without an evidentiary hearing. Because we
are unable to determine the timeliness of his amended motion,
we must reverse.
pled guilty to one count of assault in the first degree, one
count of armed criminal action, one count of unlawful use of
a weapon, and assault in the third degree. The plea court
sentenced Movant to concurrent prison terms totaling ten
years. Movant timely filed a pro se motion for
post-conviction relief under Rule 24.035, alleging several
claims of ineffective assistance of counsel during his trial
in this case, which he claimed induced him to change his plea
to guilty involuntarily.
February 4, 2015, the motion court appointed counsel to
Movant, and on April 14, 2015, post-conviction counsel
entered her appearance on Movant's behalf. That same day,
appointed counsel requested a 30-extension of the time period
for filing the amended motion. There is nothing in the record
indicating whether the motion court ruled on this request.
Counsel filed the amended motion on August 13, 2015. The
motion court denied Movant's request for an evidentiary
hearing and entered findings of fact and conclusions of law
regarding the amended motion. The motion court's order
stated "Movant's Motion and Amended Motion ... [are]
hereby OVERRULED and DENIED." This appeal follows.
threshold matter, the State argues that we must remand
because it is unclear from the record whether Movant's
motion was timely. We agree.
reaching the merits of an appeal of a motion under Rule
24.035, we must examine the timeliness of the amended motion.
Austin v. State, 484 S.W.3d 830, 832 (Mo. App. E.D.
2016) (citing Moore v. State, 458 S.W.3d 822 (Mo.
banc 2015)). Rule 24.035 provides, in relevant part, that
"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[.]"
Rule 24.035(g). The motion court may also choose to grant a
30-day extension of time in which to file the amended motion.
there is no record of the guilty plea and sentencing
transcript being filed in the motion court. We can infer from
counsel's request for additional time to file the amended
motion that it had not been filed as of April 14, 2015, but
there is no docket entry reflecting any transcript filing and
there is no file stamp date on the copy of the transcript in
the legal file on appeal. There is no indication that the
motion court granted the 30-day extension. Additionally, the
motion court's judgment states that it takes up
Movant's "Motion and Amended Motion"
(emphasis added). However, the motion court went on to make
findings upon the claims raised in Movant's amended
motion without making any finding regarding the timeliness of
we are unable to determine from the record whether
Movant's amended motion was timely filed. "The time
limits for filing a post-conviction motion are mandatory. . .
. Arguments raised for the first time in [an] amended motion
filed after the time limit. . . are barred from
consideration." Moore v. State. 458 S.W.3d 822,
827 (Mo. banc 2015) (quoting Stanley v. State. 420
S.W.3d 532, 540 (Mo. banc 2014)). Determining whether an
amended motion was timely is necessary because if it was
untimely filed, such filing would trigger the motion
court's duty to conduct an independent inquiry into
whether Movant was abandoned, which in turns determines which
motion the court should adjudicate. See Sanders v.
State, 807 S.W.2d 493, 494-95 (Mo. banc 1991). Due to
the ambiguity in the record here, we cannot discern the
timeliness of Movant's motion, and we are thus unable to
fulfill our duty to enforce the mandatory time limits of Rule
24.035. Accordingly, we must reverse and remand to the trial
court to make findings regarding whether Movant's motion
was timely, and in the event of untimely filing, conduct an
inquiry regarding whether Movant was abandoned by counsel.
See Austin. 484 S.W.3d at 833.
reverse the judgment of the motion court and remand the case
for further ...