Court of Appeals of Missouri, Eastern District, Second Division
BRYAN M. MAGUIRE, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Franklin County Cause No.
11AB-CC00143 Honorable Gael D. Wood
Colleen Dolan, Judge.
M. Maguire ("Movant") appeals the motion
court's denial of his amended motion for post-conviction
relief, arguing that his trial counsel was ineffective. The
amended motion was filed outside the time limits of Missouri
Supreme Court Rule 29.15(g). Additionally, as Movant retained
private counsel to represent him in the post-conviction
relief proceedings, he could not invoke the abandonment
doctrine to allow the motion court to consider his untimely
amended motion. Thus, we find the motion court was without
authority to rule on the merits of the amended motion, and it
did not render a final, appealable judgment on Movant's
pro se motion for post-conviction relief.
Accordingly, we must dismiss the appeal.
Standard of Review
limits for post-conviction relief motions are
mandatory." Greenleaf v. State, 501 S.W.3d 911,
912 (Mo. App. E.D. 2016) (citing Stanley v. State,
420 S.W.3d 532, 540 (Mo. banc 2014)). This Court is required
to enforce the mandatory rules created by the Supreme Court
of Missouri. Id. "Failing to abide by the
Rule's confines generally functions as a complete
waiver." Norman v. State, 509 S.W.3d 846, 848
(Mo. App. E.D. 2017). As stated in Rule 29.15(g), "[t]he
court may extend the time for filing the amended motion for
one additional period not to exceed thirty
days." (emphasis added). Our Supreme Court has made it
clear that "[a] motion court has no authority
to extend [the] time limit for filing an amended motion"
beyond what the rules allow. Stanley, 420 S.W.3d at
Factual and Procedural Background
was convicted of murder in the first degree (Count I) and
armed criminal action (Count II) on December 21, 2009. He
received a life sentence without the possibility of parole on
Count I, with a concurrent term of thirty years'
imprisonment on Count II. Movant made a direct appeal to our
Court. We issued the mandate in Movant's direct appeal on
March 10, 2011. Following an unsuccessful appeal to this
Court, Movant timely filed a pro se motion for
post-conviction relief under Rule 29.15 on May 31,
counsel was appointed on June 16, 2011, and granted
one 30-day extension of time to file an amended motion. This
appointment and the issuance of our Court's mandate in
Movant's direct appeal triggered the start of the time
limits imposed by Rule 29.15(g),  making the amended motion
due on September 14, 2011. After initially using
appointed counsel, Movant hired private
counsel, who filed an entry of appearance on July 25, 2011.
Appointed counsel filed a motion to rescind their appointment
on August 5, 2011, which the court granted August 9, 2011. On
September 26, 2011, Movant's retained counsel filed a
motion to extend the time in which it could file an amended
motion to October 14, 2011. The motion court granted the
extension on the same day. However, this request was made
after Movant's mandatory deadline of September 14, 2011.
Further, the trial court does not have the authority to
exceed the deadlines prescribed by the Missouri Supreme Court
Rules. Stanley, 420 S.W.3d at 541.
amended motion was filed on October 14, 2011. Under Rule
29.15, arguments raised in a time-barred motion cannot be
considered by our Court; we may only consider the most
current timely motion (the pro se motion in this
case). See Stanley, 420 S.W.3d at 540 (Mo. banc
2014). Thus, Movant's pro se motion was the
proper motion for the motion court to consider. However, the
motion court's judgment was based on the allegations in
Movant's amended motion. No judgment was
rendered on the pro se motion.
raises three points concerning trial and appellate
counsels' ineffectiveness based on his amended motion.
However, because an untimely motion for post-conviction
relief is procedurally barred from consideration, and the
motion court did not render a final judgment on Movant's
pro se motion, we must dismiss the cause.
acknowledges the amended motion was untimely filed. Whether
the motion court may consider Movant's untimely amended
motion hinges on whether the abandonment doctrine solely
applies to indigent movants with appointed counsel or whether
it also applies to movants with retained, private counsel.
The abandonment doctrine "was created to excuse the
untimely filing of amended motions by appointed counsel under
Rule 29.15(e)." Id. at *8 (quoting Price v.
State, 422 S.W.3d 292, 294 (Mo. banc 2014)). If a court
determines Movant has been "abandoned" by counsel
for failure to file a timely amended motion, the court may
consider the untimely-filed motion. Wilson v. State,
495 S.W.3d 827, 829 (Mo. App. E.D. 2016). "The motion
court is the appropriate forum to conduct… an
[abandonment] inquiry." Id. However, this
exception is not available to Movant.
the Supreme Court of Missouri "expressly addressed
whether retained counsel can abandon a movant by failing to
timely file an amended motion for post-conviction relief,
" and it concluded that the doctrine only applies to
appointed counsel. Gittemeier at *5. In the
case before us, Movant retained private counsel;
thus, he is not afforded the exception to Rule 29.15 granted
by the abandonment doctrine.
movant files an untimely amended motion for post-conviction
relief, and the movant has not been abandoned, "the
motion court should not permit the filing of the amended
motion and should proceed with adjudicating the movant's
initial motion." Moore v. State, 458 S.W.3d
822, 825 (Mo. banc 2015). Here, the "initial
motion" is Movant's pro se motion. Thus,
the proper motion for the motion court to assess is the
pro se ...