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Dortch v. State

Court of Appeals of Missouri, Eastern District, First Division

September 12, 2017

DANNIE JERRY DORTCH, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of the City of St. Louis Hon. Mark H. Neill

          ROBERT G. DOWD, JR, Presiding Judge

         Dannie Dortch ("Movant") appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. We remand for an independent inquiry into abandonment.

         When an 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).

         Movant 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).

         Because 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, 2015.

         At the 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)[1] 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.

         If we 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.

         The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

          Sherri B Sullivan, J and Kurt S Odenwald, J, concur

---------

Notes:

[1] 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 ...


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