Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF SCOTT COUNTY Honorable Scott T.
Horman, Associate Circuit Judge
WILLIAM W. FRANCIS, JR., J.
Daniel Hewitt ("Hewitt") appeals from a judgment of
the motion court denying his amended Rule
24.035 motion to set aside his convictions of
tampering with a motor vehicle and forgery. Because the
motion court failed to comply with this Court's opinion
and mandate, pursuant to Hewitt v. State, 518 S.W.3d
227 (Mo.App. S.D. 2017),  we reverse and remand with directions.
Court issued its opinion in Hewitt on February 14,
2017. We observed that Hewitt's amended motion was not
timely filed, and that the motion court failed to conduct an
independent abandonment inquiry, pursuant to Moore v.
State, 458 S.W.3d 822, 827 (Mo. banc 2015). We reversed
the motion court's judgment, and remanded "to the
motion court with directions that it conduct an independent
inquiry into whether [Hewitt] was abandoned by any or all of
his appointed counsels and for further proceedings
consistent with the outcome of those inquiries."
Hewitt, 518 S.W.3d at 232 (emphasis added).
opinion, this Court indicated the manner of those
"further proceedings, " as applicable, based on the
outcome of the motion court's independent abandonment
[NO ABANDONMENT:] If any delay in the filing
of an amended motion or statement in lieu thereof is
attributable to the negligence or intentional conduct of the
movant, late filing of an amended motion will not be
permitted, and movant is entitled to no relief other
than that which may be afforded upon the pro se
[ABANDONMENT:] If a court finds that a
movant has been abandoned, then the proper remedy is to put
the movant in the place where the movant would have been if
the abandonment had not occurred. The only way to
restore the motion court and parties to the position Rule
24.035(e) intends for them is for the motion court to
appoint new counsel and allow additional time for this
counsel to perform the duties required under the rule.
Id. (internal quotations and citations omitted)
Mandate issued on March 24, 2017. In relevant part, the
mandate stated that
the judgment rendered by the Circuit Court of Scott County is
reversed, and that said cause is remanded to the said Circuit
Court of Scott County with directions to the motion court
that it conduct an independent inquiry into whether [Hewitt]
was abandoned by any or all of his appointed counsels and
for further proceedings consistent with the outcomes of
those inquiries, and consistent with the opinion of
this Court herein delivered[.]
August 4, 2017, the motion court conducted an abandonment
inquiry. That same day, the motion court issued its
"Order After Abandonment Inquiry, " which found
that "Hewitt was abandoned by post-conviction
counsel[s.]" However, in contravention to this
Court's opinion and mandate, the motion court did not
"appoint new counsel and allow additional time for this
counsel to perform the duties required under [Rule
24.035]." Hewitt, 518 S.W.3d at 232 (internal
quotation and citation omitted). Instead, the motion court
ordered that its "Judgment and Findings of Fact and
Conclusions of Law issued on February 26, 2016 remain in
effect and the Court reissues those Findings of Fact and
Conclusions of Law."
scope of the trial court's authority on remand is defined
by the appellate court's mandate, and the [motion] court
must [act] in accord with our mandate and opinion."
Welman v. Parker, 391 S.W.3d 477, 483
(Mo.App. S.D. 2013) (internal quotation and citation
The mandate serves the purpose of communicating the judgment
to the lower court, and the opinion, which is a part thereof,
serves in an interpretative function. It is well settled that
the mandate is not to be read and applied in a vacuum. The
opinion is part ...