                      In the Missouri Court of Appeals
                              Eastern District
                                             DIVISION FOUR

LAMARR T. HARRIS,                                      )   No. ED102062
                                                       )
           Movant/Appellant,                           )   Appeal from the Circuit Court
                                                       )   of the City of St. Louis
v.                                                     )
                                                       )
STATE OF MISSOURI,                                     )   Honorable Michael F. Stelzer
                                                       )
           Respondent/Respondent.                      )   Filed: November 10, 2015

                                                 Introduction

           Lamarr T. Harris (Movant) appeals from the motion court’s judgment denying,

without an evidentiary hearing, his amended Motion to Vacate, Set Aside or Correct

Judgment and Sentence filed pursuant to Rule 29.151 (post-conviction motion). We

reverse and remand.

                                   Factual and Procedural Background

           On July 27, 2011, a jury found Movant guilty of one count of second-degree

domestic assault. The court sentenced Movant to five years in prison and Movant

appealed his conviction and sentence.

           On March 23, 2012, Movant filed a premature pro se post-conviction motion

challenging his conviction and sentence. On April 4, 2012, the motion court appointed

the public defender’s office to represent Movant.

1
    All rule references are to Mo. R. Crim. P. 2011.
        On June 11, 2013, this Court affirmed Movant’s conviction and sentence. State v.

Harris, 400 S.W.3d 865 (Mo. App. E.D. 2013). The Court issued its mandate on July 3,

2013.

        On December 2, 2013, appointed post-conviction counsel entered an appearance

and requested an extension of time to file an amended motion. The record does not

indicate any ruling on counsel’s request for an extension of time. On February 5, 2014,

appointed counsel filed an amended post-conviction motion. On June 11, 2014, the

motion court issued its Conclusions of Law and Order denying Movant’s post-conviction

motion without an evidentiary hearing. This appeal follows.

                                        Discussion

        On appeal, Movant challenges the motion court’s denial of his post-conviction

motion without an evidentiary hearing, asserting he was denied his rights to effective

assistance of counsel and due process of law, in that trial counsel had an actual conflict of

interest that adversely affected counsel’s performance and prejudiced Movant.

        Before proceeding to the merits of Movant’s appeal, we are compelled under

Moore v. State, 458 S.W.3d 822 (Mo. banc 2015), to examine the timeliness of the

amended post-conviction motion. Appointed counsel’s untimely filing of an amended

post-conviction motion can constitute “abandonment,” which extends the time limitation

for filing an amended post-conviction motion. Id. at 825. If the amended motion was

untimely filed and there has been no independent inquiry into abandonment, the cause

must be remanded to the motion court for such inquiry. Id. at 825-26. “It is our duty to

enforce the mandatory timelines in the post-conviction rules, but ‘the motion court is the




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appropriate forum to conduct such an inquiry’ into abandonment.” Federhofer v. State,

462 S.W.3d 838, 841 (Mo. App. E.D. 2015).

       If the motion court determines that a movant has not been abandoned, the court

should not permit the filing of the amended motion and should proceed with adjudicating

the movant’s initial motion. Moore, 458 S.W.3d at 825. If the motion court determines

the movant was abandoned by appointed counsel’s untimely filing of the amended

motion, the court is directed to permit the untimely filing. Id. at 826.

       Rule 29.15, governing post-conviction motions following a trial, does not prohibit

a movant from filing his initial pro se motion prior to the disposition of his direct appeal.

Woods v. State, 53 S.W.3d 587, 588 (Mo. App. E.D. 2001). “The Rule’s requirement that

a movant file his motion ‘within ninety days after the date the mandate of the appellate

court is issued’ merely defines the latest time a Rule 29.15 motion can be filed.” Id.

Thus, Movant’s initial pro se post-conviction motion was timely filed.

       With regard to amended motions, Rule 29.15(g) provides that when, as here, an

appeal of a judgment sought to be vacated, set aside, or corrected is taken, “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 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.” The motion court may extend

the time for filing the amended motion for an additional 30 days. Rule 29.15(g).




                                              3
        In this case, counsel was appointed on April 4, 2012,2 and the mandate was issued

on July 3, 2013. Accordingly, the amended motion was due on or before September 3,

2013,3 or, in the event the court had granted a continuance, on October 1, 2013. Here,

post-conviction counsel took no action on the case until December 2, 2013, when she

entered her appearance and requested a continuance. Counsel’s motion for continuance

was never ruled upon. Counsel did not file the amended motion until February 5, 2014,

several months after the expiration of the limitations period. Accordingly, the amended

motion was untimely.

        The motion court’s judgment is reversed, and the cause remanded to the court to

conduct an independent inquiry to determine if Movant was abandoned by appointed

counsel.

                                             Conclusion

        The motion court’s judgment is reversed and the cause remanded for further

proceedings consistent with this opinion.




                                                    SHERRI B. SULLIVAN, J.

Lisa S. Van Amburg, C.J., and
Kurt S. Odenwald, J., concur.




2
  The time period commences with the appointment of the public defender’s office, not when an individual
attorney is designated by the public defender’s office. State v. Leisure, 810 S.W.2d 560, 575 (Mo. App.
E.D. 1991).
3
  Sixty days from the date of the mandate was September 1, 2013. However, September 1, 2013, was a
Sunday and September 2, 2013, was Labor Day, a legal holiday. Rule 44.01(a) states that when the last day
of a time period is a Saturday, Sunday or a legal holiday, the period runs until the next business day.


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