Court of Appeals of Missouri, Southern District, First Division
HAROLD R. STATES, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF POLK COUNTY Honorable John C.
Porter, Associate Circuit Judge.
Steffen Rahmeyer, J.
R. States ("Movant") brought a Rule 29.15
motion; the motion was denied without an
evidentiary hearing. Movant brings one point on appeal that the
motion court clearly erred in failing to conduct an
abandonment inquiry. Movant's claim in the amended motion
was that insufficient evidence existed to support
Movant's conviction and that claim had no legal
possibility of success because the exact same claim was
denied on direct appeal. We find no error and affirm the
judgment denying post-conviction relief.
claims "abandonment" because his appointed Rule
29.15 counsel raised the exact claim of a failure to present
sufficient evidence to support his convictions that was
denied on Movant's direct appeal. The motion court ruled
that it had no authority to collaterally attack the judgment
of the appellate court and denied the motion as a matter of
law. Therefore, Movant reasons that Movant's counsel
abandoned Movant by raising a claim that deprived Movant of
meaningful review of his claims.
Court Rules provide for the appointment of counsel for
indigent movants in post-conviction cases. Because the right
to counsel in post-conviction proceedings is not
constitutionally based, any claim that post-conviction
counsel was ineffective is "categorically
unreviewable"; however, a movant may be entitled to
relief if the movant is "abandoned" because of
counsel's failure to discharge certain obligations.
Barton v. State, 486 S.W.3d 332, 336-37 (Mo. banc
2016). The claim of abandonment by post-conviction counsel is
limited to two circumstances: (1) when post-conviction
counsel takes no action with respect to filing an amended
motion or (2) post-conviction counsel is aware of the need to
file an amended motion but fails to do so in a timely manner.
Waggoner v. State, 552 S.W.3d 601, 604 (Mo.App. W.D.
2018). Here, post- conviction counsel filed a timely amended
motion. It is not for this Court to create a new
avenue for finding abandonment-the finding by the motion
court that the claim asserted has no legal possibility of
success. We can find no error that the motion court did not
sua sponte raise a claim of abandonment in circumstances that
have not been recognized as abandonment by the Supreme Court
of Missouri. The judgment is affirmed.
W. Lynch, P.J., William W. Francis, Jr., J., Concurs.
 Movant timely filed his pro
se Motion to Vacate, Set Aside or Correct the Judgment
or Sentence on October 17, 2018. Counsel was appointed for
Movant on October 17, 2018, and entered appearance on October
25, 2018. After being granted a thirty-day extension on
October 30, 2018, appointed counsel timely filed an Amended
Motion to Vacate, Set Aside or Correct Judgment and Sentence
on January 15, 2019. Movant now appeals from the denial of
the amended motion. All references to rules are to Missouri
Court Rules (2017).
 The denial at issue here is a docket
entry that actually dismisses the amended motion without
prejudice. "While a dismissal without prejudice is
generally not appealable, "[a]n exception to this rule
is found where the dismissal without prejudice effectively
terminates the litigation in the form in which it is cast or
in the plaintiffs chosen forum." Burston v.
State, 343 S.W.3d 691, 694 (Mo.App. E.D. 2011) (quoting
Nolan v. State, 959 S.W.2d 939, 940 (Mo.App.
E.D.1998) (quotation and quotation marks omitted)).
"Because the dismissal without prejudice terminated the
proceedings on Movant's first Rule 29.15 motion, the
dismissal was appealable." Id.
 We note that appointed counsel's
amended motion was not a "mere replication" of
Movant's pro se motion. Appointed counsel's
amended motion deleted a ground of ineffective assistance of
trial counsel found in Movant's pro se motion,
and combined the remaining two grounds alleged in the pro
se motion into a single ground with a greatly expanded
statement of supporting facts and legal argument in the
amended motion. Appointed counsel clearly took action in
furtherance of counsel's obligations under Rule 29.15. As
a result, we are not permitted to review whether the changes
to the pro se motion made by appointed counsel in
the amended motion "were well-advised, significant, or
successful" or "whether a reasonably competent
attorney would have made further revisions" to the
pro se motion because claims of ...