Volner v. State, 253 S.W.3d 590 (Mo. Ct. App. 2008). · Go Syfert
Volner v. State, 253 S.W.3d 590 (Mo. Ct. App. 2008). Cases Citing This Book View Copy Cite
14 citation events (14 in the last 25 years) across 1 distinct court.
Strongest positive: Travon D. Johnson v. State of Missouri (moctapp, 2023-02-07)
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) Travon D. Johnson v. State of Missouri
Mo. Ct. App. · 2023 · confidence medium
Appellant argues that because Appellant counsel’s request for an extension was made only four days into the initial sixty-day period, then counsel should have been able to rely on the court’s decision in Federhofer v. State, 462 S.W.3d 838, 841 (Mo. App. E.D. 2015), and Volner v. State, 253 S.W.3d 590, 592 (Mo. App. S.D. 2008), in determining the amended motion was due to be filed on or before October 14, 2020.
discussed Cited as authority (rule) Ralph B. Jones v. State of Missouri
Mo. Ct. App. · 2022 · confidence medium
In so holding, this Court relied on the Southern District case of Volner v. State, 253 S.W.3d 590, 592 (Mo. App. S.D. 2008), which affirmed a similar retrospective grant of a motion for extension of time.
discussed Cited as authority (rule) New LLC v. Mike Bauer
Mo. Ct. App. · 2019 · signal: cf. · confidence medium
See Clemmons v. State, 785 S.W.2d 524, 527 (Mo. banc 1990) (holding that under Rule 29.15, the discretion of the motion court to extend the time to file an amended motion must be exercised within the time the amended motion is initially due); cf. Federhofer v. State, 462 S.W.3d 838, 841 (Mo. App. E.D. 2015) (citing Volner v. State, 253 S.W.3d 590, 592 (Mo. App. S.D. 2008) (holding that a request filed by appointed counsel five days after the initial time limit for filing a post-conviction motion was timely if filed "within the thirty-day extension period" a trial court was authorized to grant)…
discussed Cited as authority (rule) Terry T. Watson v. State of Missouri
Mo. Ct. App. · 2016 · confidence medium
Rule 29.15(g) allows up to 90 days to file an amended inotion, including a 30-day extension, ii'om counsel’s entry of appearance Under the facts here and Missouri Rule of Civil Procedure 44.0](a), with an extension the rule allowed until June 19, 2013, to file an amended motion Though Movant’s post-conviction counsel requested a 45-day extension and the parties disagree about the meaning of the trial court’s order granting it; because the amended motion was filed on May 30, 2013, and because the trial court accepted and ruled upon the motion, We consider it timely. § Federhofer v, State…
discussed Cited as authority (rule) Terry T. Watson v. State of Missouri
Mo. Ct. App. · 2016 · confidence medium
Though Movant's post~conviction counsel requested a tlS-day extension and the parties disagree about the meaning of the trial coult’s order granting it; because the amended motion was filed on May 30, 2013, and because the trial conn accepted and ruled upon the motion, we consider it timely. _S_§§ Federhof`cr v. State, 462 S.W.3d 838, 841 (Mo. App. E.D` 2015) (citing cases) (amended motion considered timer even if request for extension filed after expiration of original time limit, so long as amended motion filed within total 90-day period allowed by rule); Volner v. State, 253 S.W.3d 590,…
discussed Cited as authority (rule) BRIAN GREEN, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent.
Mo. Ct. App. · 2015 · confidence medium
See Federhofer v. State, 462 S.W.3d 838, 841 (Mo.App.2015) (so long as .amended Rule 24.035 motion was ultimately filed within the extension period, it is immaterial that the request for that extension was filed after the initial sixty-day period); Volner v. State, 253 S.W.3d 590, 592 (Mo.App.2008) (approving óf request filed five days after initial sixty-day time limit when request and amended Rule 24,035 motion were both filed “well within the thirty-day extension period”).
discussed Cited as authority (rule) Demario R. Bello v. State of Missouri
Mo. Ct. App. · 2015 · confidence medium
However, a complaint that post-conviction counsel “abandoned” a potential claim by omitting from the amended motion a claim asserted by movant in his pro se motion, which is Bello’s claim here, does not constitute abandonment, “but more accurately a claim that counsel was ineffective.” Volner v. State, 253 S.W.3d 590, 593 (Mo.App.S.D.2008) (internal quotation omitted).
discussed Cited as authority (rule) Michael S. Federhofer v. State of Missouri
Mo. Ct. App. · 2015 · confidence medium
Volner v. State, 253 S.W.3d 590, 592 (Mo. App. S.D. 2008) (approving of request filed five days after initial sixty-day time limit when request and amended motion were both filed “well within the thirty-day extension period”).
discussed Cited as authority (rule) Sittner v. State (2×)
Mo. Ct. App. · 2013 · confidence medium
In Volner v. State, the movant filed a motion to “re-open” his post-conviction proceedings on the ground that he was abandoned by post-conviction counsel because counsel failed to include a claim in the amended motion that movant had raised in his original pro se postconviction motion. 253 S.W.3d 590, 591 (Mo.App.
discussed Cited "see, e.g." Rice v. State
Mo. Ct. App. · 2017 · signal: see, e.g. · confidence medium
See, e.g., Volner v. State, 253 S.W.3d 590, 592 (Mo. App. S.D. 2008) (”[N]ondescript treatment of counsel’s request for an extension made after the expiration of the initial period within which to file an amended motion is tantamount to tacit approval of such a filing so long as counsel then complies with the rule-mandated thirty-day limit to that extension.”); and Federhofer v. State, 462 S.W.3d 838, 841 (Mo. App. E.D. 2015) ("[A]s long as the amended motion was ultimately filed within the extension period, it is immaterial that the request for that extension was filed after the initial…
Retrieving the full opinion text from the archive…
Johnnie C. VOLNER, Movant-Appellant
v.
STATE of Missouri, Respondent-Respondent
No. 28433.
Missouri Court of Appeals.
May 29, 2008.
253 S.W.3d 590
2008 Mo. App. LEXIS 739
2008 WL 2204721
Gordon Rolla Upchurch, Law Office of Gordon Upchurch, Union, MO, for Appellant., Jeremiah W. (Jay) Nixon, Atty. Gen., and Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for Respondent.
Burrell, Lynch, Rahmeyer.
Cited by 11 opinions  |  Published
GARY W. LYNCH, Chief Judge.

Johnnie Volner (“Movant”) appeals the dismissal of his motion to reopen his post-conviction proceeding, alleging that he had been abandoned by appointed post-conviction counsel. Movant raises two issues on appeal: (1) that he was abandoned by post-conviction counsel because counsel filed an untimely amended motion, and (2) that he was abandoned by post-conviction counsel because counsel omitted from that amended motion an issue presented by Movant in his pro se motion which Movant claims would have afforded him post-conviction relief. Finding that the motion court properly dismissed Movant’s motion, we now affirm.

Factual and Procedural Background

On October 1, 1999, Movant pleaded guilty to two counts of felonious assault and one count of second-degree assault, all pursuant to section 565.050.[1] The trial court sentenced Movant to a twenty-five-year term on Count I, and seven-year terms on Counts II and III, to be served concurrently. Initially, Movant filed a direct appeal of his conviction and sentence; however, that appeal was voluntarily dismissed. On February 14, 2000, Movant filed a timely pro se motion for post-conviction relief pursuant to Rule 24.035.[2] An Entry of Appearance on Movant’s behalf was filed on March 30, 2000, by public defender Mark Grothoff, who was thereafter appointed by the court on April 6, 2000, to represent Movant. On June 5, 2000, Movant’s counsel filed a motion requesting an extension of time to file an amended motion, and he filed that amended motion on June 9, 2000. The motion court held a hearing on Movant’s amended motion on July 25, 2000, and denied it by judgment entered on August 7, 2000. Movant appealed that judgment, and this Court affirmed it by order without an opinion, pursuant to Rule 84.16(b)(2) and (5), and by our mandate issued on May, 11, 2001.

During February, 2007, Movant filed a series of pro se motions seeking to reinstate or re-open his post-conviction proceeding on the ground that he was abandoned by his post-conviction counsel. On February 26, 2007, Movant’s current counsel entered his appearance and thereafter filed on Movant’s behalf a “Memorandum in Support of [Movant’s] Amended Motion to Reopen Pleadings for Post Conviction Relief for Abandonment.” In particular, Movant argued that post-conviction counsel abandoned him; first, because he filed an amended post-conviction motion untimely, and second, because counsel omitted from the amended motion a claim Mov-ant had included in his original pro se post-conviction motion. The motion court denied Movant’s Amended Motion to Reopen Pleadings without an evidentiary hearing on April 5, 2007. This appeal timely followed.

Discussion

We review the motion court’s judgment denying Movant’s motion to reopen his post-conviction proceedings for clear error. Taylor v. State, 254 S.W.3d 856, 2008 WL 2102440,1 (Mo. banc 2008).

No Abandonment Because Amended Motion was Timely Filed

In his first point relied on, Movant contends that abandonment exists because his post-conviction counsel failed to file a timely amended post-conviction motion. He first directs us to State ex rel. Nixon v. Jaynes, 63 S.W.3d 210 (Mo. banc 2001), in[*592] which the Supreme Court of Missouri recognized the procedure of moving to reopen post-conviction proceedings on the ground of abandonment. Id. at 218. Movant then cites Winfield v. State, 93 S.W.3d 732 (Mo. banc 2002), and our Supreme Court’s articulation in that case of two ways in which abandonment by post-conviction counsel occurs: (1) when

post-conviction counsel takes no action on a movant’s behalf with respect to filing an amended motion and as such the record shows that the movant is deprived of a meaningful review of his claims; or (2) when post-conviction counsel is aware of the need to file an amended post-conviction relief motion and fails to do so in a timely manner.

Id. at 738-39 (citing Moore v. State, 934 S.W.2d 289, 291 (Mo. banc 1996)). Mov-ant’s first point argues that counsel’s actions fall under the latter of the two scenarios.

Movant relies upon Forest v. State, 787 S.W.2d 789 (Mo.App.1990), in support of his position that counsel filed Movant’s amended post-conviction motion untimely. In particular, Movant asserts that “[o]ur courts have long since recognized and affirmed that a request for extension filed after sixty days of Appellant counsel’s appointment is untimely and the trial court is without authority to give additional time beyond that provided by the rule.” Mov-ant misconstrues the Court’s holding in Forest, however.

In Forest, the defendant filed a timely pro se post-conviction motion, but counsel’s request for a thirty-day extension of time within which to file an amended motion, permitted under then-Rule 24.035(f), was filed five days after the then initial thirty-day period for filing an amended motion had expired.[3] Id. at 790. Nevertheless, the motion court sustained the motion and granted the thirty-day extension as allowed by the rule. Id. Counsel, however, thereafter failed to file an amended motion within that thirty-day extended period, doing so fourteen days after its expiration. Id. The Forest court’s determination that the trial court lacked jurisdiction to grant additional time beyond that provided by court rule — and the basis for Movant’s claim of untimeliness in this case — dealt not with a request for extension made after the initial filing period, but rather with counsel’s filing of the amended motion after the additional thirty-day extension period had expired. Id. In fact, the Forest court’s non-descript treatment of counsel’s request for an extension made after the expiration of the initial period within which to file an amended motion is tantamount to tacit approval of such a filing, so long as counsel then complies with the rule-mandated thirty-day limit to that extension.

The facts of the instant case align closely with those implicitly found acceptable in Forest. Here, although the initial sixty-day time limit within which to file an amended motion expired on June 1, 2000, as noted in the motion court’s records, Movant’s post-conviction counsel filed a motion for an extension five days later, and then filed Movant’s amended motion four days after that, all well within the thirty-day extension period permitted by Rule 24.035(g). Unlike Forest, in which counsel failed to file the amended motion within such extended period, Movant’s post-conviction counsel here made sure to do so.

Further supporting the notion of timeliness in the instant case is the motion[*593] court’s acceptance of the filing of the amended motion, and the subsequent hearing on that motion, which took place on July 25, 2000. Such actions implicitly acknowledge and support that the motion court exercised its discretion, as granted by Rule 24.035(g), and extended the time period within which an amended motion could be filed for a period not exceeding an additional thirty days after the expiration of the initial sixty-day period. Movant’s amended motion filed within that extended time period was, therefore, timely.

Because Movant’s post-conviction counsel filed a timely amended post-conviction motion and, thus, no abandonment under the second standard articulated in Win-field occurred, Movant’s first point is denied.

No Abandonment Where Counsel Omitted Claim in Amended Motion

Movant’s second point contends that post-conviction counsel abandoned Movant when he omitted from Movant’s amended motion a claim which Movant had included in his pro se motion. In particular, Movant argues that his post-conviction counsel’s failure to allege in the amended post-conviction motion that Movant’s plea was coerced and not fully and accurately explained to Movant prior to its completion amounts to abandonment, because counsel clearly knew or should have known about the issue, as it was included in Movant’s pro se motion.

As expressed in Winfield, and again more recently stated by our Supreme Court:

Abandonment occurs when (1) post-conviction counsel takes no action on a mov-ant’s behalf with respect to filing an amended motion and as such the record shows that the movant is deprived of a meaningful review of his claims; or (2) when post-conviction counsel is aware of the need to file an amended post-conviction relief motion and fails to do so in a timely manner.

Taylor, 254 S.W.3d at 858, 2008 WL 2102440 at 1 (citing Barnett v. State, 103 S.W.3d 765, 773-74 (Mo. banc 2003)); Winfield, 93 S.W.3d at 738-39. Movant’s allegations in his motion, which we assume as true — that post-conviction counsel omitted from the amended motion a claim asserted by Movant in his pro se motion — fit neither characterization of abandonment by post-conviction counsel as so defined by our Supreme Court. Id.

As our Supreme Court expressly articulated in Winfield, “materially incomplete action” on the part of post-conviction counsel does not constitute abandonment. Winfield, 93 S.W.3d at 739. Moreover, while Movant’s claim might closely resemble that of ineffective assistance of counsel, it is no more cognizable under that alternative theory because there is not a constitutional right to the effective assistance of counsel in a post-conviction proceeding. State v. Hunter, 840 S.W.2d 850, 871 (Mo. banc 1992). A claim that post-conviction counsel “abandoned” a potential claim “is not abandonment but more accurately a claim that counsel was ineffective.” Moore v. State, 248 S.W.3d 733, 735 (Mo.App.2008). As such, there was no cognizable claim of abandonment for the motion court to review. Taylor, 254 S.W.3d at 858, 2008 WL 2102440 at 2. Movant’s second point is denied.

Decision

As neither of Movant’s claims actually demonstrates abandonment, the motion court was bound by Rule 75.01, which limits the motion court’s jurisdiction to thirty days following entry of judgment. Rule 75.01. Movant filed his motion to re-open[*594] nearly five years after entry of judgment in this case. Thus, the motion court’s dismissal for lack of jurisdiction was not erroneous, clearly or otherwise, and is affirmed. Taylor, 254 S.W.3d at 858, 2008 WL 2102440 at 2; Moore, 248 S.W.3d at 735.

RAHMEYER, J., and BURRELL, J., concur.
1

All references to statute are to RSMo 1999.

2

All references to rules are to Missouri Court Rules (2000), unless otherwise indicated.

3

Rule 24.035 was amended after Forest such that in 2000, Rule 24.035(g) provided for an initial sixty days within which to file an amended motion, but maintained the thirty-day extension period at the motion court's discretion. Rule 24.035(g).