                       In the Missouri Court of Appeals
                               Eastern District
                                          DIVISION ONE

TERRANCE T. NORMAN,                            )         No. ED103714
                                               )
         Movant/Appellant,                     )         Appeal from the Circuit Court
                                               )         of St. Charles County
vs.                                            )         1411-CC00860
                                               )
STATE OF MISSOURI,                             )         Honorable Jon A. Cunningham
                                               )
         Respondent.                           )         FILED: January 24, 2017

                                             OPINION

         Terrance T. Norman (“Movant”) appeals from the motion court’s entry of judgment

denying, after an evidentiary hearing, his amended Rule 29.15 motion for post-conviction relief.

Because the motion court did not conduct an independent abandonment inquiry, we reverse and

remand.

                                       Procedural Background

         After a December 2012 jury trial, Movant was found guilty of first-degree robbery in

violation of Section 569.020.1 On February 11, 2013, the trial court sentenced Movant to twenty-

five years’ imprisonment. The written sentence indicated that Movant was a “dangerous

offender” under Section 558.016. Movant took a direct appeal, and this court affirmed the

judgment, though we modified it by ordering that any reference of Movant as a dangerous




1
    All further statutory references are to RSMo 2000.
offender be deleted. State v. Norman, 431 S.W. 3d 563, 572 (Mo. App. E.D. 2014). Our mandate

issued on June 13, 2014.

       Pursuant to Rule 29.15, which allows a convicted offender to challenge his conviction or

sentence after trial, Movant filed a pro se motion on September 8, 2014. On October 10, 2014,

the motion court appointed the public defender to represent Movant. Movant’s post-conviction

attorney entered his appearance on October 28, 2014, and filed a contemporaneous motion for an

extension of time (until January 8, 2015) in which to file an amended motion. The motion court

did not rule on counsel’s first request for an extension. During a November 2014 status

conference, counsel made a second, oral motion for an extension through December 17, 2014.

The second motion was granted. On December 17, 2014, post-conviction counsel made a third

motion for an extension, again requesting a deadline of January 8, 2015. Though the motion

court made no ruling on the third request, counsel filed Movant’s amended motion for post-

conviction relief on January 8, 2015.

       In June 2015, the motion court held an evidentiary hearing on the amended motion. On

August 27, 2015, the motion court denied the amended motion in its entirety, addressing each

substantive point as enumerated in Movant’s amended motion and ignoring the substance of

Movant’s original pro se motion. This timely appeal followed.

                                             Discussion

       The time limits for filing a Rule 29.15 motion for post-conviction relief are mandatory.

Eastburn v. State, 400 S.W.3d 770, 773 (Mo. banc 2013). Failing to abide by the Rule’s confines

generally functions as a complete waiver. Id.; see also Harper v. State, 404 S.W.3d 378, 385

(Mo. App. S.D. 2013) (“[W]here a post-conviction motion is untimely filed, the motion court has

no authority to consider it, and it must be dismissed.”). Rule 29.15(b) requires that an initial

motion for post-conviction relief be filed within 90 days after the date of the appellate court’s
                                                  2
mandate affirming the judgment or sentence. The proscription against untimely amended

motions for post-conviction relief is found in Rule 29.15(g), which provides in pertinent part:

       . . . If an appeal of the judgment sought to be vacated, set aside, or corrected is
       taken,2 the amended motion shall be filed within 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 counsel is issued and an entry of
       appearance is filed by any counsel that is not appointed but enters an appearance
       on behalf of the movant. The court may extend the time for filing the amended
       motion for one additional period not to exceed thirty days.

Rule 29.15(g) (emphasis here).

       The Supreme Court of Missouri has recognized a narrow exception to Rule 29.15’s

deadlines. When post-conviction counsel is appointed to an indigent movant, an amended motion

filed beyond the Rule 29.15(g) deadline can constitute “abandonment” of the movant. Moore v.

State, 458 S.W.3d 822, 825 (Mo. banc 2015). Abandonment by appointed counsel extends the

time limitations for filing an amended Rule 29.15 motion. Id. If post-conviction counsel untimely

filed an amended Rule 29.15 motion and the motion court did not conduct an independent

inquiry into abandonment, then we must remand the case to the motion court for such an inquiry.

Miller v. State, 478 S.W.3d at 533–34 (Mo. App. E.D. 2015). “The motion court is the

appropriate forum to conduct such an inquiry.” Moore, 458 S.W.3d at 826.

       Here, Movant’s amended motion was originally due on December 9, 2014. While post-

conviction counsel secured an extension of the deadline until December 17, the motion court

never ruled on counsel’s subsequent motion to extend the deadline again until January 8, 2015,

the day Movant’s amended motion was filed. We have held that “[w]hen post-conviction counsel

requests additional time to file an amended motion, the motion court must expressly grant or

deny said request.” Huffman v. State, 493 S.W.3d 892, 895 (Mo. App. E.D. 2016) (citing Adams


2
  A separate deadline is in place for post-conviction motions where no appeal of the judgment is
taken. Rule 29.15(g).
                                                3
v. State, 483 S.W.3d 480, 484 (Mo. App. E.D. 2016)) (emphasis added). We cannot presume the

motion court granted an extension “without a record thereof,” id., so the December 17 deadline

was, for the purposes of this appeal, never extended. Moreover, the motion court lacked the

power to extend the deadline a second time: our Supreme Court “has made clear that one and

only one extension of the deadline is permissible.” Wilson v. State, 495 S.W.3d 827, 830 (Mo.

App. E.D. 2016); Rule 29.15(g) (“The court may extend the time for filing the amended motion

for one additional period …”) (emphasis added). Accordingly, Movant’s amended Rule 29.15

motion, filed on January 8, 2015, was untimely.

       Movant’s amended motion was untimely filed and the motion court did not conduct an

independent inquiry regarding abandonment. As the Supreme Court did in Moore, we reverse the

judgment of the motion court and remand for a determination of whether abandonment

occurred.3

                                          Conclusion

       The judgment is reversed, and the case is remanded for further proceedings consistent

with this opinion.



                                            ____________________________
                                            Mary K. Hoff, Judge


Robert M. Clayton III, Presiding Judge, and Lisa P. Page, Judge, concur.




3
  The State and Movant concede that remand for an abandonment inquiry is the correct result in
this case.
                                                  4
