Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of the City of St. Louis Hon. Mark H.
G. DOWD, JR, Presiding Judge
Dortch ("Movant") appeals from the judgment denying
his Rule 24.035 motion without an evidentiary hearing. We
remand for an independent inquiry into abandonment.
untimely amended motion is filed, the motion court has a duty
to undertake an independent inquiry to determine if
abandonment occurred. Moore v. State, 458 S.W.3d
822, 825 (Mo. banc 2015). As a result, if this Court
determines that an amended motion filed by post-conviction
counsel is untimely, but there has been no independent
inquiry into abandonment conducted by the motion court, then
the case must be remanded to the motion court. Id.
at 826. While it is this Court's duty to enforce the
mandatory timelines in the post-conviction rules, the motion
court is the appropriate forum to conduct the abandonment
inquiry. Blackburn v. State, 468 S.W.3d 910, 913
(Mo. App. E.D. 2015).
pled guilty to charges of unlawful possession of a weapon,
unlawful use of weapon and resisting arrest and was
sentenced. He did not appeal, but filed a pro se motion to
set aside his convictions under Rule 24.035. Counsel entered
her appearance on Movant's behalf and asked for a
thirty-day extension of time in which to file an amended
motion. See Rule 24.035(g). The record does not
indicate that the request for an extension was ever ruled on,
and we cannot presume that is was granted without an express
ruling by the court. Childers v. State, 462 S.W.3d
825, 828 (Mo. App. E.D. 2015); see also Huffman v.
State, 493 S.W.3d 892, 895 (Mo. App. E.D. 2016) (motion
court must expressly grant or deny requests for extensions).
there was no extension, the amended motion was due within
sixty-days of when counsel entered her appearance and the
"complete transcript consisting of the guilty plea and
sentencing hearing is filed with the court." Rule
24.035(g). Counsel appeared on December 29, 2014, and the
docket sheets in the legal file reflect that a transcript was
filed on March 5, 2015. Using March 5 as the triggering date,
the amended motion was due sixty days later on May 4, 2015.
The amended motion was not filed, however, until June 3,
outset of its judgment denying Movant's requested relief,
the motion court stated the amended motion was timely because
the "actual transcript of the guilty plea and sentencing
were not filed" and thus the time limits for filing an
amended motion were "never actually triggered."
This finding and conclusion about timeliness is directly
contradicted by the docket entry on March 5, 2015. Perhaps
the court disregarded the March 5 docket entry because
nothing was actually filed that day, because the transcript
filed on that day was not the "complete transcript of
the plea and sentencing hearing" necessary to trigger
the time limits under Rule 24.035(g) or because the entry was an
error for some other reason. But the trial court did not
reference that docket entry, and we cannot assume that any of
these possible explanations is accurate.
rely on the docket entry as proof that the required
transcript was filed on March 5, 2015, then the amended
motion was untimely and we must, under Moore, remand
for an independent inquiry into abandonment. Likewise, if we
conclude that the conflict between the motion court's
statements and the record make it impossible to determine if
or when the transcript was filed, then we must still remand.
See generally Stafford v. State, 510 S.W.3d 906, 907
(Mo. App. E.D. 2017) (remanding to where motion court's
finding of timeliness was not supported by record). On
remand, if the motion court can explain how the March 5, 2015
docket entry is incorrect and confirm that the proper
transcript was never actually filed, the amended motion could
be deemed timely. See Pittman v. State, 504 S.W.3d
76, 80-81 (Mo. App. E.D. 2016) (affirming motion court's
conclusion that required transcript was never filed-which in
that case was supported by record-and, therefore,
time to file amended motion never triggered and amended
motion deemed timely). If, however, the motion court
determines that the requisite transcript was actually filed
on March 5, 2015 consistent with the docket entry, then the
amended motion was untimely and the court must consider
whether Movant was abandoned.
judgment is reversed, and the case is remanded for further
proceedings consistent with this opinion.
B Sullivan, J and Kurt S Odenwald, J, concur
 We note that counsel's filing of
an amended motion exactly ninety days from March 5, 2015
suggests she believed or knew that the transcript filed on
that day was the plea and sentencing transcript that
triggered her deadline, although she also mistakenly believed