FROM THE CIRCUIT COURT OF ST. FRANCOIS COUNTY The Honorable
Sandy Martinez, Judge
Fischer, Chief Justice.
Bearden appeals a judgment overruling his amended Rule 24.035
motion for post-conviction relief without an evidentiary
hearing. Bearden's amended motion was untimely,
but the motion court did not conduct an abandonment inquiry.
Consequently, the judgment is reversed, and the case is
and Procedural Background
state charged Bearden with two counts of the class C felony
of possession of a chemical with the intent to create a
controlled substance in violation of § 195.420, RSMo
Supp. 2010. Bearden pleaded guilty to both charges.
The circuit court sentenced Bearden to consecutive seven-year
sentences, suspended execution of the sentences, and placed
him on probation for five years. Bearden did not appeal.
April 2015, the circuit court held a probation revocation
hearing, revoked Bearden's probation, and executed his
sentences. Bearden was delivered to the department of
timely filed a pro se Rule 24.035 motion for
post-conviction relief. The motion court appointed the public
defender to represent Bearden. On December 18, 2015,
appointed counsel filed a transcript of the guilty plea,
sentencing, and probation violation admissions. On December
29, 2015, appointed counsel filed a transcript of
Bearden's probation revocation hearing. The motion court
granted Bearden a 30-day extension of time. Bearden filed his
amended motion March 30, 2016. The motion court denied relief
without an evidentiary hearing. Bearden appeals.
24.035(g) filing deadlines are mandatory. Stanley v.
State, 420 S.W.3d 532, 540 (Mo. banc 2014). Both circuit
and appellate courts "have a 'duty to enforce the
mandatory time limits . . . even if the state does not raise
the issue.'" Price v. State, 422 S.W.3d
292, 297 (Mo. banc 2014). Accordingly, this Court will not
consider the merits of a motion for post-conviction relief
without first determining whether the motion was timely
filed. Gittemeier v. State, No. SC95953, 2017 WL
4002011, at *1 (Mo. banc Sept. 12, 2017). When appointed
counsel fails to file a timely amended motion, this Court
will remand the case to the motion court to determine whether
appointed counsel abandoned the post-conviction movant.
Moore v. State, 458 S.W.3d 822, 825-26 (Mo. banc
Amended Motion Was Untimely
If no appeal of the 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 a
complete transcript consisting of the guilty plea and
sentencing hearing has been filed in the trial court and
counsel is appointed or (2) the date both a complete
transcript has been filed in the trial court and an entry of
appearance is filed by any counsel that is not appointed but
enters an appearance on behalf of movant.
24.035(g) defines a "complete transcript" as
"consisting of" the transcript of the "guilty
plea and sentencing hearing." The "complete
transcript" does not include a transcript of the
probation revocation hearing. Accordingly, the 60-day filing
period began December 18, 2015, when appointed counsel filed
a transcript of the guilty plea and sentencing hearing. Given
the 30-day extension granted by the motion court,
Bearden's amended motion was due March 17, 2016.
Bearden's amended motion was filed out of time on March
to the plain language of Rule 24.035(g), Bearden asserts the
transcript was not "complete" until December 29,
2015, when appointed counsel filed a transcript of the
probation revocation hearing. Bearden's argument is
premised on the incorrect assumption ...