Court of Appeals of Missouri, Eastern District, Second Division
LAZARO V. GUERRA-HERNANDEZ, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of St. Charles County Honorable Daniel
M. Hess, Judge.
Guerra-Hernandez appeals the judgment denying his Rule
24.035 motion for post-conviction relief. Because
we find Guerra-Hernandez's amended motion was untimely,
we reverse and remand to the motion court to determine
whether Guerra-Hernandez was abandoned by post-conviction
8, 2015, Guerra-Hernandez was charged by an amended
information with three counts: 1) second-degree assault of a
law enforcement officer; 2) driving while intoxicated; and 3)
driving while license was revoked. Guerra-Hernandez pled
guilty on all counts. On July 20, 2015, judgment was entered
finding Guerra-Hernandez guilty on all charges. On July 29,
2015, the court filed an amended judgment, sentencing
Guerra-Hernandez as a prior and persistent offender to a
total of ten years' imprisonment with all of his
sentences to run concurrent to each other. Guerra-Hernandez
did not file a direct appeal.
January 15, 2016, Guerra-Hernandez filed his pro se Rule
24.035 motion claiming: 1) trial counsel was ineffective for
inducing him to plead guilty by promising his sentence would
be 120-days shock treatment; and 2) he was "excessively
charged with no factual basis." On January 21, 2016, the
motion court entered an order appointing counsel to represent
Guerra-Hernandez. On February 9, 2016, counsel entered her
appearance and filed a motion for additional time to file an
amended motion. The motion for additional time was never
November 28, 2016, counsel filed an amended Rule 24.035
motion, raising only the ineffective assistance claim alleged
in Guerra-Hernandez's pro se motion. On March 1, 2017,
the motion court entered its judgment and order, denying
Guerra-Hernandez's amended motion without an evidentiary
hearing. The motion court did not address the timeliness of
the amended motion, whether Guerra-Hernandez was abandoned by
post-conviction counsel, or Guerra-Hernandez's claim in
his pro se motion that he was "excessively charged with
no factual basis." Guerra-Hernandez filed a motion for
leave to file a late notice of appeal which this Court
granted on June 13, 2017. On June 15, 2017, Guerra-Hernandez
filed his notice of appeal.
August 15, 2017, Guerra-Hernandez filed a motion with the
trial court to consider his amended motion as timely filed.
In the motion, counsel acknowledged the amended motion was
untimely but asserted Guerra-Hernandez was not at fault and
blamed the untimeliness on her failure to ascertain whether
her motion for an extension of time to file an amended motion
had been granted. The motion court granted the motion the
same day by signing counsel's motion and conducting no
further inquiry or hearing.
addressing the merits of Guerra-Hernandez's appeal, we
must determine if this case must be remanded to address
whether Guerra-Hernandez was abandoned by appointed counsel.
Interestingly, Guerra-Hernandez failed to raise the issue in
his brief. For its part, the State argues that a remand is
unnecessary because the motion court already made a
determination that Guerra-Hernandez was abandoned and
therefore "no purpose" would be served by a remand.
undisputed the amended motion was untimely and the motion
court's finding regarding the timeliness of the amended
motion was made after the notice of appeal had been filed in
this case. When a notice of appeal is filed, the trial court
lost jurisdiction of the case for most purposes. General
Growth Props. v. Oval Office, Inc., 670 S.W.2d 165, 166
(Mo. App. W.D. 1984). The jurisdiction which is lost is the
jurisdiction to exercise any judicial functions. Id.
The jurisdiction which remains is the authority the court
retains over its records and the entitlement to exercise
purely ministerial or executive functions. Id.
filing deadlines for post-conviction relief are mandatory,
and cannot be waived. Watson v. State, 536 S.W.3d
716, 717 (Mo. banc 2018). When a motion for post-conviction
relief is filed untimely, the motion court should not reach
the merits of the motion. Id. "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 abandonment by
appointed counsel.'" Id. at 718 (quoting
Vogl v. State, 437 S.W.3d 218, 230 (Mo. banc 2014)).
appointed counsel fails to file a timely amended motion, the
motion court must conduct an independent inquiry of whether
movant was abandoned by post-conviction counsel.
Vogl, 437 S.W.3d at 229. This inquiry must be
conducted to determine if the merits of the amended motion
can be considered. Moore v. State, 458 S.W.3d 822,
825-26 (Mo. banc 2010). If after conducting an independent
inquiry into the abandonment issue, the motion court
determines the movant was not abandoned by post-conviction
counsel, the motion court should ...