Hatmon v. State, SD 37074

CourtCourt of Appeal of Missouri (US)
Writing for the CourtJEFFREY W. BATES, J.
Citation641 S.W.3d 746
Parties Wesley HATMON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
Docket NumberSD 37074
Decision Date16 March 2022

641 S.W.3d 746

Wesley HATMON, Movant-Appellant,
STATE of Missouri, Respondent-Respondent.

No. SD 37074

Missouri Court of Appeals, Southern District, Division One.

Filed: March 16, 2022

Attorney for Appellant: Rosemary E. Percival of Kansas City, MO.

Attorneys for Respondent: Eric S. Schmitt, Atty. Gen., and Austin C. Davis, Asst. Atty. Gen., of Jefferson City, MO.


Wesley Hatmon (Movant) appeals from an order denying his amended Rule 24.035 motion for post-conviction relief to set aside his conviction for the class C felony of driving while intoxicated as an aggravated offender. See § 577.010.1 Movant contends the motion court clearly erred by: (1) finding Movant was not abandoned by appointed post-conviction counsel, who, according to the court's own findings, filed an untimely amended motion through no fault of Movant; and (2) ruling on the merits of the untimely amended motion. We agree. Therefore, we vacate the order denying relief on the merits and remand for further proceedings consistent with this opinion.

This is the second appeal in this post-conviction proceeding. In the first appeal, appointed counsel had filed an amended motion ten days late, but the "issue of the timeliness of the amended motion was neither mentioned in the Rule 24.035 hearing, nor addressed in the findings of facts and conclusions of law." Hatmon v. State , 603 S.W.3d 927, 928 (Mo. App. 2020). Instead, the motion court ruled on the merits of the amended motion and denied post-conviction relief. Id . at 927. This Court reversed the judgment and remanded the case to the motion court "with instructions to make an independent inquiry on the abandonment issue." Id . at 928.

In September 2020, the motion court conducted such an inquiry. At a hearing on the matter, appointed counsel testified that she had filed the amended motion late due to a miscalculation of the due date, through no fault of Movant. The court agreed that Movant "had nothing to do with the late filing" of the amended motion, and orally ruled that Movant "was abandoned by the late filing of that motion."

On December 9, 2020, however, the motion court reached a different conclusion. The court entered an "Amended Order Denying Movant's Motion to Vacate, Set Aside, or Correct Judgment and Sentence under Rule 24.035, and Finding of No Abandonment by Counsel [.]" (Emphasis added.) Therein, the court found that the untimely filing of the amended motion was "not the result of Movant's negligence or intentional conduct[,]" but rather was caused solely by counsel's miscalculation of the due date. The court then stated that this raised "the presumption of abandonment" and that "under the analysis in Sanders v. State , 807 S.W.2d 493 (Mo. banc 1991), the belated filing of the amended motion should be permitted."

641 S.W.3d 748

The motion court went on to conclude that because a hearing had already been held on the merits, Movant was not prejudiced by the late filing, and thus he "was not abandoned by counsel." (Emphasis added.) The...

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