JOSEPH A. SMILEY v. STATE OF MISSOURI

• Court: Missouri Court of Appeals
• Decided: January 5, 2022
• Docket: SD37012
• Status: Published

Opinion

Missouri Court of Appeals Southern District Division Two

JOSEPH A. SMILEY, ) ) Appellant, ) ) vs. ) No. SD37012 ) STATE OF MISSOURI, ) FILED: January 5, 2022 ) Respondent. )

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable Calvin R. Holden, Judge

REVERSED AND REMANDED WITH DIRECTIONS

Joseph A. Smiley (“Movant”) appeals the motion court’s judgment denying his Rule

29.15 amended motion for post-conviction relief (“PCR”). 1 Because Movant’s amended motion

was not timely filed and the motion court did not conduct an independent abandonment inquiry,

we reverse the motion court’s judgment and remand the case to the motion court to conduct such

an inquiry and then to proceed accordingly.

Movant’s convictions in the underlying criminal case were affirmed by this Court on

direct appeal and mandate issued on July 14, 2016. Movant timely filed a pro se PCR motion on

August 15, 2016.

1 All rule references are to Missouri Court Rules (2016).

1 Two days later, on August 17, 2016, the motion court appointed the State Public

Defender to represent Movant, which triggered the commencement of the Rule 29.15(g) sixty-

day period for filing an amended motion. Stanley v. State, 420 S.W.3d 532, 540 (Mo. banc

2014). Thus, any amended motion was initially due to be filed by October 17, 2016. 2

Also, on August 17, 2016, on its own motion, the motion court granted “an additional 60

days for filing of an Amended Motion.” At that time, however, the motion court was only

authorized to extend the time for filing an amended motion “for one additional period not to

exceed thirty days.” Rule 29.15(g). The motion court had no authority to extend the time limit

for filing an amended motion beyond the initial 30-day extension. Stanley, 420 S.W.3d at 541.

As so limited, the motion court’s order extended the filing deadline for an amended motion for

only an additional thirty days. Thus, any amended motion was due to be filed no later than

November 16, 2016.

Appointed counsel untimely filed Movant’s amended PCR motion on January 23, 2017.

When an untimely amended motion is filed, the motion court has a duty to undertake an

independent inquiry to determine if abandonment occurred. Moore v. State, 458 S.W.3d 822,

825 (Mo. banc 2015). That was not done here, which requires us to “remand the case because

the motion court is the appropriate forum to conduct such an inquiry.” Id. at 826. “The result of

the inquiry into abandonment determines which motion—the initial motion or the amended

motion—the court should adjudicate.” Id.

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

conduct an independent abandonment inquiry and for further proceedings consistent with the

outcome of that inquiry.

2 The 60th day fell on Sunday, October 16, 2016, which by Rule 44.01(a) extended the period until October 17, 2016.

2 GARY W. LYNCH, C.J. – OPINION AUTHOR

DON E. BURRELL, J. – CONCURS

JENNIFER R. GROWCOCK, J. – CONCURS