                          In the Missouri Court of Appeals
                                  Eastern District
                                                 DIVISION TWO


    MELVIN PATTON,                                            )   No. ED102323
                                                              )
            Movant/Appellant,                                 )   Appeal from the Circuit Court of
                                                              )   the City of St. Louis
    vs.                                                       )
                                                              )   Honorable David L. Dowd
    STATE OF MISSOURI,                                        )
                                                              )   Filed: February 9, 2016
            Respondent.                                       )


                                                   Introduction

           Melvin Patton (Movant) appeals the judgment of the Circuit Court of the City of St.

Louis denying his Rule 29.151 motion for post-conviction relief. On appeal, Movant claims two

points of error. Because Movant’s amended motion was untimely filed and the motion court

made no independent abandonment inquiry, we reverse and remand.

                                               Factual Background

           Movant filed a timely pro se Rule 29.15 motion for post-conviction relief on April 9,

2014. The motion court entered an order appointing counsel on May 1, 2014. On May 6, 2014,

appointed counsel filed an entry of appearance and a request for a thirty-day extension to the

sixty-day statutory deadline to file an amended motion. The motion court never entered an order



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    Unless otherwise noted, all references to Rules are to Missouri Supreme Court Rules (2015).
ruling on or granting the extension. As a result, the amended motion was due July 4, 2014. On

July 30, 2014, appointed counsel filed an amended motion, which was well after the sixty-day

deadline. Ultimately, the motion court denied Movant’s amended motion without an evidentiary

hearing, finding that Movant “failed to allege facts which are not refuted by the record and which

entitle him to relief.” This appeal follows.

                                          Abandonment

       The Missouri Supreme Court recently took up the issue of abandonment in Moore v.

State, 458 S.W.3d 822 (Mo. banc 2015). In Moore, the movant filed a timely pro se motion for

post-conviction relief, but the movant’s appointed counsel missed the statutory sixty-day

deadline for filing the movant’s amended motion. Id. at 824. Counsel filed an amended motion

on the movant’s behalf after the sixty-day deadline, and the motion court considered the merits

of the movant’s amended motion without first making any inquiry regarding abandonment. Id.

On transfer from this Court, the Supreme Court held that when an “untimely amended motion is

filed, the motion court has a duty to undertake an ‘independent inquiry . . .’ to determine if

abandonment occurred.” Id. at 825 (citing Vogl v. State, 437 S.W.3d 281, 228-29 (Mo. banc

2014). The Court held that “the motion court is the appropriate forum to conduct such an

inquiry[,]” and because the motion court did not undertake such an inquiry, the Court reversed

the motion court’s judgment and remanded the matter for the court to conduct an abandonment

inquiry. Id. at 826.

       In the present case, the parties do not dispute that Movant’s amended motion was filed

past the statutory sixty-day deadline, and that the motion court, in considering Movant’s post-

conviction motion, did not make an independent inquiry into whether post-conviction counsel

abandoned Movant. Therefore, in accordance with Moore, we are required to reverse the motion




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court’s judgment and remand the matter to the motion court for a determination of abandonment

and for further proceedings consistent with the motion court’s inquiry.

                                            Conclusion

       The judgment of the motion court is reversed and the case is remanded for further

proceedings consistent with this opinion.




                                             _______________________________
                                             Philip M. Hess, Presiding Judge


Gary M. Gaertner, Jr., J. and
Angela T. Quigless, J. concur.




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