Tipton v. State

811 S.W.2d 60, 1991 Mo. App. LEXIS 972, 1991 WL 110941

Opinion

CRANDALL, Chief Judge.

Movant, Calvin Tipton, appeals from the denial of his Rule 24.035 motion without an evidentiary hearing. We remand.

Movant pleaded guilty to illegal possession of phencyclidine and was sentenced to three years in prison. Movant then filed a timely pro se Rule 24.035 motion for post-conviction relief. Counsel was appointed to represent him on July 2, 1990. Appointed counsel thereafter filed an untimely motion for an extension of time to file an amended motion on August 27, 1990. Both motions were denied. No amended motion was ever filed.

On appeal, movant argues that the motion court erred in denying the untimely motion for an extension of time to file an amended motion. He claims the denial of this motion deprived him of his right to counsel on his Rule 24.035 motion.

“The appropriate forum for addressing claims regarding a complete absence of performance by postconviction counsel on a motion for postconviction relief is in the circuit court where the motion is being prosecuted by movant.” Luleff v. State, 807 S.W.2d 495, 497 (Mo. banc 1991).

This cause is remanded to the motion court to determine if appointed counsel complied with Rule 24.035(e). The motion court shall make findings on this point. If the court finds appointed counsel has not performed as required by Rule 24.035(e) and that the lack of performance is not movant’s fault, the court shall appoint new counsel allowing time to amend the pro se motion, if necessary, as permitted under Rule 24.035(f) and the cause shall proceed anew according to the provision of the rule, See Luleff, 807 S.W.2d at 498.

SIMON and REINHARD, JJ., concur.