Summary
The Missouri Supreme Court reverses the dismissal of Milner's Rule 24.035 post-conviction motion. Because appointed counsel filed the amended motion after the mandatory deadline, the motion court was required to conduct an independent, reviewable inquiry into whether Milner had been abandoned. The case is remanded for that inquiry and for determination of which motion should be adjudicated.
Topics
Practice areas
Questions Presented
- Whether the untimely filing of an amended Rule 24.035 motion by appointed post-conviction counsel created a presumption of abandonment.
- Whether the motion court was required to conduct an independent, reviewable inquiry into whether Milner had been abandoned by appointed counsel before determining which post-conviction motion to adjudicate.
- Whether the absence of an independent abandonment inquiry required reversal and remand.
Holdings
- When appointed post-conviction counsel files an amended Rule 24.035 motion untimely, the untimely filing creates a presumption that the movant was abandoned by counsel.
- When appointed post-conviction counsel files an amended motion untimely, the motion court must independently inquire whether the movant was actually abandoned and must create a record sufficient for appellate review.
- If the motion court finds that the untimely filing resulted from the movant's negligence or intentional failure to act, it must adjudicate the pro se motion; if it finds that the movant was not negligent or intentionally inactive, it must permit the untimely amended motion to be filed.
Key quotations
“When the independent inquiry is required but not done, this Court will remand the case because the motion court is the appropriate forum to conduct such an inquiry.” (551 S.W.3d at 480)
“The failure to conduct an independent inquiry requires this case to be remanded to the motion court for an independent abandonment inquiry, which is capable of being reviewed by an appellate court.” (551 S.W.3d at 480)
Factual background
Milner pleaded guilty to two counts of failing to register as a sex offender and received consecutive four-year sentences, execution of which was initially suspended in favor of probation. After his probation was revoked and the sentences were executed, Milner timely filed a pro se Rule 24.035 motion. Appointed counsel filed the amended motion after the deadline, asserting that records needed to prepare it had been destroyed by plea counsel.
Procedural history
Milner pleaded guilty to two counts of failing to register as a sex offender and later sought post-conviction relief under Missouri Rule 24.035. His appointed post-conviction counsel filed the amended motion after the applicable deadline, and the motion court dismissed the pro se motion without adjudicating the amended motion or conducting an independent abandonment inquiry. The Missouri Supreme Court reversed and remanded for that inquiry.
Remand instructions
The motion court must conduct an independent inquiry, creating a record capable of appellate review, to determine whether Milner was abandoned by appointed counsel's untimely filing of the amended motion. If Milner caused the delay through negligence or intentional failure to act, the court must adjudicate the pro se motion; otherwise, it must permit the untimely amended motion to be filed.