Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of the City of St. Louis Honorable
B. SULLIVAN, P.J.
Coleman (Movant) appeals from the motion court's judgment
denying his amended Motion to Vacate, Set Aside or Correct
Judgment and Sentence filed pursuant to Rule
29.15 (post-conviction motion) after an
evidentiary hearing. We reverse and remand.
and Procedural Background
27, 2013, a jury found Movant guilty of first-degree robbery.
The trial court sentenced Movant to thirty years'
imprisonment, as a prior and persistent offender, and Movant
appealed his conviction. This Court affirmed Movant's
conviction and sentence. State v. Coleman, 458
S.W.3d 452 (Mo. App. E.D. 2015). The Court issued its mandate
on April 10, 2015.
April 29, 2015, Movant timely filed his pro se
post-conviction motion. On May 29, 2015, appointed
post-conviction counsel entered an appearance on Movant's
behalf and requested an extension of time to file an amended
motion. The motion court granted an additional 30 days to
file an amended motion. Counsel filed an amended motion and
request for evidentiary hearing on August 27, 2015.
motion court held an evidentiary hearing and subsequently
issued its Findings of Fact, Conclusions of Law, and Order
denying Movant's post-conviction motion. This appeal
proceeding to the merits of Movant's appeal, we are
compelled under Moore v. State, 458 S.W.3d 822 (Mo.
banc 2015), to examine the timeliness of the amended
29.15(g) provides that when, as here, an appeal of a 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 court is issued and an
entry of appearance is filed by any counsel that is not
appointed but enters an appearance on behalf of movant."
The motion court may extend the time for filing the amended
motion for an additional 30 days. Rule 29.15(g).
counsel's untimely filing of an amended post-conviction
motion can constitute abandonment, which extends the time
limitation for filing an amended post-conviction motion.
Moore, 458 S.W.3d 822, 825. If the amended motion
was untimely filed and there has been no independent inquiry
into abandonment, the cause must be remanded to the motion
court for such inquiry. Id. at 825-26. "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." Federhofer v. State, 462 S.W.3d
838, 841 (Mo. App. E.D. 2015), quoting Moore, 458
S.W.3d 822, 825.
motion court determines that a movant has not been abandoned,
the court should not permit the filing of the amended motion
and should proceed with adjudicating the movant's initial
motion. Moore, 458 S.W.3d at 825. If the motion
court determines the movant was abandoned by appointed
counsel's untimely filing of the amended motion, the
court is directed to permit the untimely filing. Id.
case, the mandate was issued on April 10, 2015, and appointed
counsel entered his appearance on May 29, 2015. The motion
court granted a 30-day extension and appointed counsel filed
the amended motion on August 27, 2015, 90 days after entering
his appearance. However, appointed counsel's deadline for
filing runs from the date of appointment, not the date of
entry of appearance. Rule 29.15(g). There is no court order,
docket entry, or any other indication in the record as to
when counsel was appointed. Although the motion court stated
in its order that "counsel timely filed an amended
motion, " there is nothing in the record supporting that
conclusion. See Ford v. State, ...