Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E.
Manuel Southern ("Movant") appeals from the motion
court's denial of his Rule 29.15 motion for
post-conviction relief. The motion challenged Movant's
conviction for first-degree statutory rape and claimed the
attorney who represented Movant at trial, Ruth Russell
("trial counsel"), was ineffective for failing to
object to and move for a mistrial during a nurse's
testimony and for failing to investigate and call a witness.
Unfortunately, it appears Movant's amended motion was not
timely filed and the motion court conducted no inquiry into
the reason for the untimely filing. Accordingly, the motion
court's judgment is reversed and the case is remanded.
2010, Movant was charged with forcible rape and, in the
alternative, with first-degree statutory rape. Movant had a
jury trial on June 12 through June 15, 2012. The jury found
Movant guilty of first-degree statutory rape, and the trial
court sentenced Movant to thirty years in the Missouri
Department of Corrections. This Court affirmed Movant's
sentence and conviction. State v. Southern, No.
SD32513 (Mo. App. S.D. March 27, 2014).
thereafter sought post-conviction relief. The motion court
held an evidentiary hearing and denied relief. Movant
raises two claims of ineffective assistance of counsel.
Before this Court may reach those issues, however, it must
fulfill its duty to determine whether Movant's motion for
post-conviction relief was timely filed. See Moore v.
State, 458 S.W.3d 822, 825 (Mo. banc 2015). The amended
motion was not timely filed and the motion court did not
conduct an inquiry into the reason for the untimely filing.
These circumstances require remand.
Rule 29.15(a), a person convicted of a felony following trial
may claim that the conviction violates the constitution or
laws of Missouri by seeking post-conviction relief in the
sentencing court." Dorris v. State, 360 S.W.3d
260, 265 (Mo. banc 2012). Post-conviction motions are
governed by strict time limits, however, and "[t]he
State cannot waive movant's noncompliance with the time
limits" of the post-conviction rules. Id. at
time limits for the filing of the amended motion in a case
where the movant had a trial are governed by Rule 29.15(g).
That rule provides in relevant part:
If an appeal of the judgment sought to be vacated, set aside,
or corrected is taken, the amended motion shall be filed
within 60 days of the earlier of the date both the mandate of
the appellate court is issued and:
(1) Counsel is appointed, or
(2) An entry of appearance is filed by any counsel that is
not appointed but enters an appearance on behalf of movant.
The court may extend the time for filing the amended motion
for one additional period not to exceed 30 days.
post-conviction counsel was appointed on May 7, 2014. Then,
post-conviction counsel requested, and the motion court
granted, an additional 30 days in which to file the amended
motion. That made the amended motion due on August 5, 2014.
However, the amended motion was ...