TERRY T. WATSON, Appellant,
STATE OF MISSOURI, Respondent.
FROM THE CIRCUIT COURT OF ST. LOUIS CITY, MISSOURI Honorable
Bryan Hettenbach, Judge
Denvir Stith, Judge
T. Watson appeals the motion court's order overruling his
Rule 29.15 motion for postconviction relief. Finding counsel
failed to timely file an amended motion, this Court reverses
and remands for a determination of abandonment.
FACTUAL AND PROCEDURAL BACKGROUND
Watson was convicted of first-degree robbery, resisting
arrest, and second-degree trafficking. He was sentenced to
concurrent terms of imprisonment, the longest of which was 18
years. The convictions and sentences were affirmed on appeal,
and on February 11, 2013, Mr. Watson filed a timely pro se
motion for postconviction relief under Rule 29.15. The motion
alleged Mr. Watson received ineffective assistance of counsel
in that counsel (1) failed to notify Mr. Watson of the
existence of a plea offer and (2) opted to take Mr.
Watson's case to trial because of a mistaken belief that
a conviction under the first-degree robbery statute required
the use of a weapon to forcibly take property and cause
motion court notified the public defender's office that
Mr. Watson had filed a pro se motion on March 16, 2013, but
did not appoint counsel. A special public defender entered
her appearance on Mr. Watson's behalf on March 20, 2013.
On April 12, 2013, she filed a "Motion for Leave to File
Amended Answer, " in which she requested "a period
of 45 days from the date of filing within which to
file an amended petition." (Emphasis added). The motion
court issued an order stating only "Motion Granted So
issue now before this Court is to determine exactly when the
amended motion was due and whether an amended motion filed by
the special public defender on May 30, 2013, was timely. If
timely, then this Court will reach the merits. If untimely,
then this Court must remand for a determination of
STANDARD OF REVIEW
appellate court reviews a motion for postconviction relief,
such review "is limited to a determination of whether
the motion court's findings and conclusions are clearly
erroneous." Eastburn v. State, 400 S.W.3d 770,
773 (Mo. banc 2013). The motion court's findings and
conclusions are clearly erroneous only "if, after
reviewing the entire record, this Court is left with the
definite and firm impression that a mistake has been
made." Id. The filing deadlines for
postconviction relief "are mandatory, and cannot be
waived." Cox v. State, 445 S.W.3d 131, 134 (Mo.
App. 2014). When a motion for postconviction relief is filed
untimely, "the motion court should not reach the merits
of the motion." Turner v. State, 935 S.W.2d
393, 394 (Mo. App. 1996).
TIMELINESS OF THE AMENDED MOTION A. Requirements for an
Amended Rule 29.15 Motion
29.15(e) requires a movant seeking postconviction relief to
first file a pro se motion. The appointment of counsel for an
indigent movant or entry of appearance of counsel for a
movant triggers the running of the time for counsel to file
an amended motion under Rule 29.15(g). See Creighton v.
State, 520 S.W.3d 416, 421 (Mo. banc 2017); Rule
29.15(e). Under Rule 29.15(g), the amended motion must be
[W]ithin sixty days of the earlier of: (1) the date both the
mandate of the appellate court is issued and counsel is
appointed or (2) the date both the mandate of the appellate
court is issued and an entry of appearance is filed by any
counsel that is not appointed but enters an appearance on
behalf of movant.
Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015),
quoting, Rule 29.15(g).
time Mr. Watson filed his motion, Rule 29.15(g) further
provided the "court may extend the time for filing the
amended motion for one additional period not to exceed 30
days." No other extensions were permitted. Failure to file
either a timely amended motion or a statement in lieu of an
amended motion explaining why an amended motion was
unnecessary "raises a presumption of ...