Hatmon v. State

• Decision Date: 29 July 2020
• Docket Number: No. SD 36289,SD 36289
• Citation: 603 S.W.3d 927 (Mem)
• Parties: Wesley L. HATMON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

603 S.W.3d 927 (Mem)

Wesley L. HATMON, Movant-Appellant,

v.STATE of Missouri, Respondent-Respondent.

No. SD 36289

Missouri Court of Appeals, Southern District, Division One.

Filed: July 29, 2020

Attorney for Appellant – Susan L. Hogan of Kansas City, MO.

Attorney for Respondent – Eric S. Schmitt (Attorney General), Dora A. Fichter of Jefferson City, MO.

Nancy Steffen Rahmeyer, P.J.

Wesley L. Hatmon ("Movant"), following an evidentiary hearing on an amended motion, was denied post-conviction relief under Rule 24.035.¹ Unfortunately, we must reverse and remand, not on the merits, but for an independent evidentiary inquiry on whether Movant was abandoned by post-conviction counsel. Both Movant and the State agree that the amended motion was untimely. The notice of filing of guilty plea and sentencing transcript, filed by post-conviction counsel, erroneously stated the due date for the amended motion.² The issue of the timeliness of the amended motion was neither mentioned in the Rule 24.035 evidentiary hearing, nor addressed in the findings of facts and conclusions of law.

We must address the timeliness of the amended motion. Moore v. State , 458 S.W.3d 822, 826-27 (Mo. banc 2015). "The filing deadlines for post[-]conviction relief are mandatory, and cannot be waived." Watson v. State , 536 S.W.3d 716, 717 (Mo. banc 2018) (internal quotations and citation omitted). "The untimely filing of an amended motion by post[-]conviction counsel creates a presumption of abandonment." Id. at 719. When the presumption of abandonment arises, "the motion court is obligated to conduct an independent inquiry to determine whether the movant was actually abandoned." Milner v. State , 551 S.W.3d 476, 479-80 (Mo. banc 2018).

We, therefore, have no choice but to reverse the judgment and remand the case to the motion court with instructions to make an independent inquiry on the abandonment issue.

Daniel E. Scott, J. – Concurs

William W. Francis, Jr., J. – Concurs

1 All rule references are to Missouri Court Rules (2020), unless otherwise specified.

2 Separate counsel relied upon that date in the filing of the amended motion.