               SUPREME COURT OF MISSOURI
                                           en banc
ANDREW LUKE LEMASTERS,                        )          Opinion issued April 28, 2020
                                              )
                              Appellant,      )
                                              )
v.                                            )          No. SC97878
                                              )
STATE OF MISSOURI,                            )
                                              )
                                              )
                              Respondent.     )

             APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY
                      The Honorable Timothy W. Perigo, Judge

         Andrew Lemasters appeals the judgment overruling his Rule 29.15 postconviction

motion seeking to vacate his felony statutory sodomy conviction under section 566.062.1

He claims the motion court erred in failing to adjudicate one claim and in denying another

claim of ineffective assistance of trial counsel. Before considering Mr. Lemasters’s claims

on appeal, this Court examines whether his pro se motion was timely filed. Because the

trial court has yet to comply with this Court’s mandate in State v. Lemasters, 456 S.W.3d

416 (Mo. banc 2015), there is no final judgment in the underlying criminal case. Therefore,

Mr. Lemasters’s motion for postconviction relief is premature.          The motion court’s



1
    All statutory citations are to RSMo 2000, unless otherwise noted.
judgment is vacated, and the cause is remanded. On remand, Mr. Lemasters’s pro se

motion shall be deemed filed when the time for filing a postconviction relief motion

commences under Rule 29.15(b). 2

                           Factual and Procedural Background

         In 2013, a jury found Mr. Lemasters guilty of one count of first-degree statutory

sodomy, and the court sentenced him to 31 years in prison. Mr. Lemasters had been

charged with two counts of statutory sodomy, but the state dismissed the second count

before the case was submitted to the jury. In recording the judgment, however, the trial

court mistakenly noted that Mr. Lemasters had been convicted of both counts.

         Mr. Lemasters appealed, alleging the trial court erred in overruling his motion to

disqualify the prosecutor’s office and seeking to correct the erroneous written judgment.

This Court found, while the trial court did not abuse its discretion in overruling Mr.

Lemasters’s motion to disqualify the prosecutor’s office, it did make a clerical error in

recording the judgment. This Court held, “the judgment as to one count of first-degree

statutory sodomy is affirmed. The judgment as to the second count of first-degree statutory

sodomy is vacated. The case is remanded with directions that the trial court vacate its

judgment with respect to the second count of statutory sodomy.” Lemasters, 456 S.W.3d

at 426. This Court issued its mandate on March 12, 2015.

         After this Court’s mandate issued, the trial court made a docket entry stating,

“Affirmed.” This is likely because, on July 14, 2014, approximately eight months before



2
    All references to Rule 29.15 are to Missouri Court Rules (2015).

                                              2
this Court issued its mandate, the trial court entered an amended judgment correcting the

error in the original judgment. A review of the record on appeal, however, shows this

Court was unaware of this amendment when it decided Mr. Lemasters’s appeal. Neither

Mr. Lemasters nor the state noted the trial court’s amended judgment in their briefs, which

were filed subsequent to the amendment. Instead, both parties asked this Court to enter a

nunc pro tunc correction to the trial court’s original erroneous judgment, suggesting the

parties also lacked notice of the trial court’s action. The Court declined to correct the

judgment nunc pro tunc and, instead, remanded with the above instructions.

       Mr. Lemasters filed a pro se motion for postconviction relief pursuant to Rule 29.15

on June 17, 2015, 97 days after this Court issued its mandate. The motion court appointed

the public defender to represent him.           Motion counsel filed a motion to treat

Mr. Lemasters’s pro se Rule 29.15 motion as timely, alleging Mr. Lemasters’s “delay in

finalizing his Form 40, with his signature, in part resulted from his having to wait for access

to a notary public with the institution” and citing Price v. State, 422 S.W.3d 292 (Mo. banc

2014), as authority for the exception to an untimely filed motion when the delay was caused

by third-party interference. The motion court sustained his motion on September 25, 2015.

       Motion counsel filed an amended Rule 29.15 motion. At the beginning of the

evidentiary hearing, Mr. Lemasters’s counsel confirmed that the motion court had

sustained the motion to treat Mr. Lemasters’s pro se motion as timely. The state did not

object to Mr. Lemasters’s claim of third-party interference, and Mr. Lemasters presented

no evidence regarding the alleged third-party interference. After the evidentiary hearing,

the motion court overruled Mr. Lemasters’s motion on the merits, holding Mr. Lemasters

                                              3
“failed to meet his burden beyond a preponderance of the evidence that he received

ineffective assistance of trial counsel, and secondly he was prejudiced thereby.”

       Mr. Lemasters appealed. This Court granted transfer after opinion by the court of

appeals. Mo. Const. art. V, sec. 10.

                                           Analysis

       Mr. Lemasters claims his motion for postconviction relief was premature because

the trial court failed to carry out this Court’s mandate issued in his direct appeal; therefore,

his judgment of conviction is not yet final. He further argues the time period for him to

file his pro se motion will not begin to run until the trial court acts as mandated by this

Court. The state argues Mr. Lemasters may not raise this claim for the first time on appeal,

particularly in light of Mr. Lemasters’s contrary request that the motion court treat his pro

se postconviction motion as timely filed. Given his position in the motion court, the state

asserts Mr. Lemasters “waived appellate review of any alleged error by the motion court

in proceeding on his postconviction motion.”

       Even if this Court were to agree Mr. Lemasters waived any claim that his

postconviction relief motion was prematurely filed, it does not end the inquiry into the

timeliness of his pro se motion. In its brief, the state claims the motion court erred in

treating Mr. Lemasters’s motion as timely because it was filed 97 days after this Court’s

mandate issued in Lemasters, 456 S.W.3d 416. Accordingly, this Court must address the

timeliness of Mr. Lemasters’s motion for postconviction relief. See Dorris v. State, 360

S.W.3d 260, 268 (Mo. banc 2012) (“It is the court’s duty to enforce the mandatory time

limits and the resulting complete waiver in the post-conviction rules[.]”).

                                               4
       Rule 29.15 authorizes those convicted of a felony after trial to collaterally challenge

their convictions by claiming constitutional or jurisdictional defects. If an appellate court

orders a remand on direct appeal, Rule 29.15 provides that a postconviction motion

challenging the judgment entered after remand be filed only after that new judgment or

sentence becomes final. Rule 29.15(b) specifies that, if no appeal is taken from the

remanded judgment, a petitioner has 180 days to file a motion for postconviction relief. If

an appeal is taken from the remanded judgment, however, a motion for postconviction

relief must be filed within 90 days of the appellate court’s mandate. Rule 29.15(b).

       Mr. Lemasters challenged his conviction on direct appeal, and this Court issued its

mandate directing the trial court to vacate his conviction on the second count of statutory

sodomy. When an appellate court reverses a trial court’s judgment and remands the case

with directions to enter a specific judgment, the directions “must be followed by the trial

court without deviation . . . .” Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d

623, 633 (Mo. banc 2013) (emphasis added) (quoting Sebree v. Rosen, 374 S.W.2d 132,

136 (Mo. 1964)). After this Court’s mandate issued in Mr. Lemasters’s direct appeal,

however, the trial court incorrectly entered on the docket sheet, “Affirmed,” disregarding

this Court’s direction to “vacate its judgment with respect to the second count of statutory

sodomy.” See Lemasters, 456 S.W.3d at 426.

       The state argues that, because the “sole judgment of conviction that [Mr. Lemasters]

sought to have set aside was affirmed by this Court,” the judgment of conviction became

final when this Court issued its mandate affirming the conviction on that count. This Court

clarified in State v. Waters, No. SC97910, __ S.W.3d __ at *7 (Mo. banc Mar. 17, 2020),

                                              5
however, that a judgment of conviction that resolves fewer than all counts against a

defendant, while any count remains pending, is not final. Accordingly, Mr. Lemasters’s

conviction on the first count will not become final until the trial court complies with this

Court’s mandate in the direct appeal.

       “There are two types of remands: (1) a general remand, which does not provide

specific direction and leaves all issues open to consideration in the new trial; and (2) a

remand with directions, which requires the trial court to enter a judgment in conformity

with the mandate.” Gerken v. Mo. Dep’t of Soc. Servs., Family Support Div., 415 S.W.3d

734, 738 (Mo. App. 2013) (internal quotations omitted). In Mr. Lemasters’s direct appeal,

this Court issued a remand with specific directions. When an appellate court provides

specific directions to a circuit court, the circuit court “cannot modify, alter, amend, or

deviate” from the appellate court’s directions. Id. (internal quotations omitted).

       The trial court in the underlying criminal case failed to enter a judgment in

conformity with the mandate of this Court. 3 The trial court may have concluded there



3
  Mr. Lemasters also claims there is a further failure to comply with this Court’s mandate
because the mandate also directed he be transferred from the department of corrections to
the Newton County jail “to await the further order and action of the said Circuit Court of
Newton County.” He is correct that has not occurred. Because the original mandate has
not been fully effectuated, this Court has authority to amend the mandate and has done so.
The mandate in State v. Lemasters, SC94295 has been amended to remove the direction
that Mr. Lemasters be transported from the department of corrections to the Newton
County jail. This is because it is not, and never was, necessary for Mr. Lemasters to be
present in the courtroom when the trial court enters a new judgment correctly reflecting
what occurred during his trial and sentencing. See State v. Berry, 506 S.W.3d 357, 365
(Mo. App. 2016) (“If the defendant is not returned for resentencing, the court has authority
only to enter the sentence as orally pronounced.” (quoting State v. Burrell, 944 S.W.2d
948, 951 (Mo. App. 1997)).

                                             6
was no need to comply with this Court’s mandate because it had previously executed an

amended judgment correcting the same error. 4 Appellate mandates, however, require the

trial court’s strict compliance. See Smith, 410 S.W.3d at 633. This Court’s mandate did

not grant discretion to the trial court. This Court in Lemasters specifically directed the trial

court to “vacate its judgment with respect to the second count of statutory sodomy.” 456

S.W.3d at 426. The trial court could comply with this direction only by entering an

amended judgment after the mandate’s issuance that correctly reflects what occurred

during Mr. Lemasters’s trial and sentencing.

       Given the trial court’s failure to strictly comply with this Court’s mandate, no “new

judgment” has yet resulted from Mr. Lemasters’s direct appeal, much less become final. 5

See Gerken, 415 S.W.3d at 738. “A motion for post-conviction relief is a collateral attack

on a final judgment of a court.” McKay v. State, 520 S.W.3d 782, 787 (Mo. banc 2017)

(internal quotations omitted).     Because the judgment of conviction in Mr. Lemasters’s

criminal case is not yet a final judgment that triggers the running of the time period in

which he can file a Rule 29.15 motion, his Rule 29.15 motion is premature.

       This Court has articulated the proper procedure for prematurely filed motions:


4
  The trial court in Mr. Lemasters’s criminal case had the power to correct its judgment
without notice to the parties or the court of appeals where his appeal was then pending.
Pirtle v. Cook, 956 S.W.2d 235, 241 (Mo. banc 1997). Its failure to give notice of
correction of its judgment, however, caused the parties to continue to seek such relief on
appeal and this Court to issue an opinion and mandate directing the trial court to vacate a
judgment that had previously been corrected.
5
  Significantly, this Court did not order the trial court to enter a judgment nunc pro tunc,
which would not have affected the finality of the original judgment. See Pirtle, 956 S.W.2d
at 241. Rather, its mandate gave specific directions with which the trial court did not
comply. See Lemasters, 456 S.W.3d at 426.

                                               7
       [W]here a premature post-conviction motion has been filed under Rule 29.15
       or Rule 24.035, it should be held pending the time for filing of the post-
       conviction motion . . . . At that point the premature motion, as filed or as
       supplemented within the time permitted for filing such a motion, should be
       considered filed by the motion court.

Id. A motion court’s ruling on a premature motion should be vacated on appeal and the

cause remanded so that it may proceed once the challenged criminal judgment is final. 6

See id. at 788. On remand, the motion court shall consider Mr. Lemasters’s pro se motion

for postconviction relief filed when the time for filing a postconviction relief motion

commences under Rule 29.15(b).

                                       Conclusion

      For the reasons stated above, the judgment of conviction is not final for purposes of

appeal.   Therefore, Mr. Lemasters’s motion for postconviction relief is premature.

Accordingly, the motion court’s judgment is vacated, and the cause is remanded.



                                          ___________________________________
                                           PATRICIA BRECKENRIDGE, JUDGE


All concur.




6
 Because this issue is dispositive, the Court need not address Mr. Lemasters’s other claims
of error.

                                            8
