             In the Missouri Court of Appeals
                     Eastern District
                                       DIVISION THREE

SAMUEL L. LOMAX,                                )       No. ED101809
                                                )
       Appellant,                               )
                                                )       Appeal from the Circuit Court
       vs.                                      )       of the City of St. Louis
                                                )
STATE OF MISSOURI,                              )       Honorable Thomas J. Frawley
                                                )
       Respondent.                              )       Filed: June 30, 2015

       Samuel Lomax appeals from the judgment denying his Rule 29.15 motion without an

evidentiary hearing. We reverse and remand.

       Before proceeding to the merits, we are compelled under Moore v. State to first examine

the timeliness of amended motions in each post-conviction case on appeal, even if the issue is

not raised by either party. 2015 WL 1735533 (Mo. banc April 14, 2015). If it is determined that

an amended motion filed by appointed counsel is untimely, but there has been no independent

inquiry into abandonment, then the case must be remanded to the motion court for such inquiry.

Id. It is our duty to enforce the mandatory timelines in the post-conviction rules, but “the motion

court is the appropriate forum to conduct such an inquiry” into abandonment. Id.

       Rule 29.15(g) provides that where, as here, an appeal of the 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.”

       In this case, counsel was appointed on February 5, 2013, after the mandate issued. He

sought and was granted a thirty-day extension of time under Rule 29.15(g) to file an amended

motion, but did not actually file it until March 6, 2014, over a year after being appointed.

Counsel states he misunderstood the deadlines for filing an amended motion when an appeal has

been taken and, therefore, the amended motion was untimely due to his error and was not

Lomax’s fault. He argues that this Court can deem that Lomax was abandoned and proceed to

review the merits of the appeal without remand. But, as the Supreme Court clearly stated, the

motion court is the appropriate court for determining abandonment. See id. at *3. Lomax also

contends that, instead of an unconditional remand, we could hold this appeal in abeyance while

the motion court determines abandonment and then supplements the record in this appeal with its

findings. We will instead handle this matter as the Supreme Court did in Moore, reversing the

judgment outright and remanding the case for a determination of abandonment.

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

with this opinion.




                                                   ROBERT G. DOWD, JR., Judge

Kurt S. Odenwald, P.J. and
Gary M. Gaertner, Jr., J., concur.




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