                       In the Missouri Court of Appeals
                               Eastern District
                                          DIVISION ONE

KENITH R. WILSON,                              )         No. ED103281
                                               )
         Movant/Appellant,                     )         Appeal from the Circuit Court
                                               )         of St. Louis County
vs.                                            )         14SL-CC03549
                                               )
STATE OF MISSOURI,                             )         Honorable Richard C. Bresnahan
                                               )
         Respondent.                           )         FILED: August 16, 2016


                                             OPINION

         Kenith Wilson (“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

         We begin with the case’s procedural background, since Movant’s amended Rule 29.15

motion was untimely filed and post-conviction deadlines play “an important role in the orderly

presentation and resolution of post-conviction claims.” Price v. State, 422 S.W.3d 292, 297 (Mo.

banc 2014). After a jury trial in October 2012, Movant was found guilty of one count of first

degree robbery (in violation of Section 569.020, RSMo 2000 1) and one count of armed criminal

action (Section 571.015). On November 9, 2012, the trial court sentenced Movant, as a prior


1
    All further statutory references are to RSMo 2000.
offender, to twenty-five years’ imprisonment. Movant took a direct appeal, and this court

affirmed the trial court’s judgment. See Wilson v. State, 437 S.W.3d 830 (Mo. App. E.D. 2014).

Our mandate issued on August 5, 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 October 3, 2014. On either October 22 or

October 23, 2014, the motion court appointed the public defender to represent Movant. 2

Movant’s first post-conviction attorney entered her appearance on November 13, 2014, and filed

a concomitant motion for a 30-day extension of time. The motion court granted the continuance.

       On December 22, 2014, Movant’s appointed counsel moved to withdraw her

representation and for another 30-day continuance. The motion court granted both motions, and a

second public defender filed her appearance on January 6, 2014. Movant’s second attorney

immediately moved to “clarify” the deadline for the amended Rule 29.15 motion, and asked that

the trial court set a deadline 90 days from the date she was appointed. The motion court granted

the motion and set a new deadline: March 31, 2015. Movant’s second attorney filed an Amended

Rule 29.15 motion on that day.

                                           Discussion

       As noted above, 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




2
 The handwritten date on the October order is October 23, but it is file stamped October 22. As
discussed below, the precise date of the order is immaterial because the last day Movant’s
amended motion could have properly been submitted was in January 2015. It was not filed until
March 31, 2015.

                                                2
motion court has no authority to consider it, and it must be dismissed.”). The proscription against

late post-conviction relief motions 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, 3 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).

       However, 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. While Movant

does not address the issue of abandonment, the State’s position is that this court should either

affirm the motion or remand to the trial court for an abandonment inquiry.

       Even if the State had not raised the abandonment issue, we are duty-bound to address it.

Price v State, 422 S.W.3d 292, 297 (Mo. banc 2014); Lomax v. State, 471 S.W.3d 358, 359 (Mo.

App. E.D. 2015). 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.




3
  A separate deadline is in place for post-conviction motions where no appeal of the judgment is
taken. Rule 29.15(g).

                                                 3
       Here, it is clear that Movant’s amended Rule 29.15 motion was untimely filed. The

motion court appointed counsel for Movant on October 22 or October 23, 2014, thereby starting

Rule 29.15(g)’s initial 60-day clock. See Stanley v. State, 420 S.W.3d 532, 540 (Mo. banc 2014)

(“[T]he effective date of appointment of counsel is the date on which the office of the public

defender is designated rather than the date of counsel’s entry of appearance.”). Whether the clock

started on October 22 or 23 is irrelevant: sixty days from October 22 was Sunday, December 21,

so in either case the amended motion was due Monday, December 22, 2014. As is permissible

under Rule 29.15(g), Movant’s first post-conviction attorney secured a 30-day extension, moving

the deadline to January 21, 2015.

       Any subsequent continuances were beyond the motion court’s power to grant, and

Movant’s amended motion was not filed until March 31, 2015. Our Supreme Court has made

clear that one and only one extension of the deadline is permissible: other than the 30-day

extension allowed in Rule 29.15(g), a “motion court has no authority to extend [the] time limit

for filing an amended motion.” Stanley, 420 S.W.3d at 541. In Stanley, as in this case, the post-

conviction movant was appointed one attorney from the public defender’s office who later

withdrew. Id. at 539–40. The motion court’s appointment of a second post-conviction public

defender did not restart the Rule 29.15(g) clock: “[t]he date of first appointment of counsel

controls the time for filing an amended motion, regardless of whether the court later appoints

new counsel or allows new counsel to enter an appearance.” Id. at 540–41.

       Movant’s March 2015 amended motion was therefore untimely, and the motion court did

not conduct an independent abandonment inquiry. As the Supreme Court did in Moore, we

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

abandonment occurred.



                                                 4
                                          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.




                                               5
