G Cite
cited 2× by 2 distinct cases, 2019–2020 · 2 courts ·
…a motion court's findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made.
⚠ not in text
cited 2× by 2 distinct cases, 2021–2024 ·
…limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous.
at p. 401
⚠ not in text
cited 2× by 2 distinct cases, 2018–2019 ·
…the mechanism by which postconviction counsel informs the motion court of counsel's determination that an amended motion is unnecessary because, through counsel's actions, postconviction counsel believes all facts and claims known to the movant are included in the pro se motion.
at p. 402
⚠ not in text
Treatment trajectory · 2018 → 2026 · click a year to view as-of
2018
2022
2026
Top citers, strongest first. 24 distinct citers.
How cited ↗
examined
Cited as authority (verbatim quote)
Perkins v. State
(3×)
also: Cited as authority (rule)
this court has repeatedly held the time limitations on postconviction relief motions are mandatory and cannot be extended by the motion court.
cited
Cited as authority (rule)
KENNETH M. SAUTER, JR., Movant-Appellant
v.
STATE OF MISSOURI, Respondent-Respondent
Johnson, 580 S.W.3d at 900; Latham v. State, 554 S.W.3d 397, 401 (Mo. banc 2018).
cited
Cited as authority (rule)
WI 909 Walnut, LLC, et al.
vs.
909 Walnut Tower, LLC, et al.
Id. (citing Latham v. State, 554 S.W.3d 397 405-06 (Mo. banc 2018)).
cited
Cited as authority (rule)
Leesa Wiseman v. Missouri Department of Corrections
Id. (citing Latham v. State, 554 S.W.3d 397 405-06 (Mo. banc 2018)).
discussed
Cited as authority (rule)
TERRENCE TYRELL TINSLEY, JR. v. STATE OF MISSOURI
Standard of Review On appeal, review of a denial of a Rule 24.035 post-conviction relief motion is "limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous." Johnson v. State, 580 S.W.3d 895 , 900 (Mo. banc 2019) (quoting Latham v. State, 554 S.W.3d 397, 401 (Mo. banc 2018)).
cited
Cited as authority (rule)
JOHNNY LEE COOPER v. STATE OF MISSOURI
Latham v. State, 554 S.W.3d 397, 403 (Mo. banc 2018).
discussed
Cited as authority (rule)
Jordan Medlin v. State of Missouri
Although “[t]he untimely filing of an amended motion raises a presumption of abandonment by counsel,” Latham v. State, 554 S.W.3d 397, 399 (Mo. banc 2018), “the abandonment doctrine applies only to cases involving appointed post-conviction counsel and thus cannot excuse retained counsel’s untimely amended motion.” Williams v. State, 602 S.W.3d 275 , 280 (Mo. App. E.D. 2020) (citing Gittemeier v. State, 527 S.W.3d 64, 71 (Mo. banc 2017)).
discussed
Cited as authority (rule)
Donald Nussbaum v. State of Missouri
(2×)
also: Cited "see"
Rule 24.035(k); Latham v. State, 554 S.W.3d 397, 401 (Mo. banc 2018).
discussed
Cited as authority (rule)
State ex rel. Andrew Bailey, Relator v. The Honorable Robin E. Fulton
Fite v. Johnson, 530 S.W.3d 508, 510 (Mo. banc 2017), and courts must enforce the mandatory procedures of those proceedings “to prevent duplicative and unending challenges to the finality of a judgment,” Latham v. State, 554 S.W.3d 397, 404 (Mo. banc 2018).
cited
Cited as authority (rule)
Jerry A. Harley v. State of Missouri
Latham v. State, 554 S.W.3d 397, 399 (Mo. banc 2018); Moore 2015, 458 S.W.3d at 825 .
discussed
Cited as authority (rule)
ROBERT J. BRANSON v. STATE OF MISSOURI
Standard of Review Appellate review of the motion court's denial of a Rule 24.035 post-conviction relief motion is "limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous." Johnson v. State, 580 S.W.3d 895 , 900 (Mo. banc 2019) (quoting Latham v. State, 554 S.W.3d 397, 401 (Mo. banc 2018)).
cited
Cited as authority (rule)
Steven Earl v. State of Missouri
Latham v. State, 554 S.W.3d 397, 399 (Mo. banc 2018); Moore, 458 S.W.3d at 825 ; Sanders, 807 S.W.2d at 495 .
discussed
Cited as authority (rule)
MARCUS L. JOHNSON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
See Moore v. State, 458 S.W.3d 822, 825-26 (Mo. banc 2015); Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012). 2 motion court’s ruling on a Rule 24.035 motion for postconviction relief is ‘limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous.’” Latham v. State, 554 S.W.3d 397, 401 (Mo. banc 2018) (quoting Rule 24.035(k)) (alterations in original).
discussed
Cited as authority (rule)
Ronald Johnson v. State of Missouri
Standard of Review “This Court’s review of a motion court’s ruling on a Rule 24.035 motion for postconviction relief is ‘limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous.’” Latham v. State, 554 S.W.3d 397, 401 (Mo. banc 2018) (quoting Rule 24.035(k)) (alterations in original).
cited
Cited as authority (rule)
DALE FRAZIER, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Latham v. State, 554 S.W.3d 397, 401 (Mo. banc 2018) (internal quotations and citations omitted).
discussed
Cited as authority (rule)
Antwain Cedrick Stewart v. State of Missouri
A statement in lieu of an amended motion is "the mechanism by which postconviction counsel informs the motion court of counsel's determination that an amended motion is unnecessary because, through counsel's actions, postconviction counsel believes all facts and claims known to the movant are included in the pro se motion." Latham v. State, 554 S.W.3d 397, 402 (Mo. banc 2018).
discussed
Cited as authority (rule)
BILLIE JOE BORSCHNACK, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
When counsel is appointed by the court, such counsel’s failure “to file either an amended motion or a statement in lieu of an amended motion within the 60-day deadline creates a presumption of abandonment.” Latham v. State, 554 S.W.3d 397, 404 (Mo. banc 2018).
cited
Cited "see"
State of Missouri v. David F. Schneider
See State v. Bales, 630 S.W.3d 754 , 762 (Mo. banc 2021) (quoting Heifetz v. Apex Clayton, Inc., 554 S.W.3d 397 n. 10 (Mo. banc 2018)).
cited
Cited "see"
City of Crestwood v. Affton Fire Protection District
See Latham v. State, 554 S.W.3d 397, 405-06 (Mo. banc 2018).
discussed
Cited "see"
Shania A. Harness v. State of Missouri
(2×)
See Latham v. State, 554 S.W.3d 397, 405 (Mo. 2018).
cited
Cited "see"
STATE OF MISSOURI, Plaintiff-Respondent v. ROBERT L. CAMPBELL
See Latham v. State, 554 S.W.3d 397, 406 (Mo. banc 2018). 3 but not a new judgment.
cited
Cited "see"
WILLIAM SCOTT SOURS, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
See Latham v. State, 554 S.W.3d 397, 403 (Mo. banc 2018).
cited
Cited "see, e.g."
CORNELIUS JUNIOR HARRIS, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
See also Latham v. State, 554 S.W.3d 397, 404 (Mo. banc 2018).
Retrieving the full opinion text from the archive…
David Glenn LATHAM
v.
STATE of Missouri
v.
STATE of Missouri
Sep 11, 2018.
554 S.W.3d 397
Patricia Breckenridge, Judge *399David Latham appeals from the motion court's judgment overruling his motion for postconviction relief. Mr. Latham timely filed his pro se Rule 24.0351 motion after revocation of his probation and execution of his sentence for the class A felony of trafficking drugs in the second degree, section 195.223,2 for possessing six grams or more of cocaine base. On appeal, Mr. Latham asserts he was abandoned because his postconviction counsel filed a statement in lieu of an amended motion beyond the 60-day deadline in Rule 24.035(g) for filing an amended motion. Alternatively, he contends his pro se pleading filed in reply to the statement in lieu of an amended motion filed by his counsel should be treated as a timely amended motion, and the motion court erred by concluding his plea counsel was not ineffective. He asserts he would not have pleaded guilty had plea counsel noticed and explained that the laboratory report showed the state had insufficient evidence to convict him of the class A felony of trafficking cocaine base., Although Mr. Latham's postconviction counsel filed a statement in lieu of an amended motion, it was not filed within the 60-day deadline in Rule 24.035(g) for filing an amended motion. The purpose of a statement in lieu of an amended motion is to make a record that postconviction counsel has performed the responsibilities imposed by Rule 24.035(e) so a presumption of abandonment does not arise when no amended motion is filed by Rule 24.035(g)'s 60-day deadline. That purpose is not satisfied when a statement in lieu of an amended motion is filed after the 60-day deadline. Accordingly, to fulfill its purpose, a statement in lieu of an amended motion must be filed by the date on which an amended motion is due., On remand, if the motion court finds Mr. Latham's postconviction counsel abandoned him and postconviction counsel failed to act on his behalf, the motion court shall appoint new counsel and allow time for new counsel to perform the responsibilities required by Rule 24.035(e). If postconviction counsel acted on Mr. Latham's behalf but did so untimely under the postconviction rules, the motion court shall treat the statement in lieu of an amended motion as timely and consider Mr. Latham's subsequent pro se pleading as his reply to counsel's statement in lieu of amended motion. The motion court shall then determine whether Mr. Latham's initial pro se motion could have been made legally sufficient by amendment or whether there were other grounds for relief known to Mr. Latham not included in his initial pro se motion. If so, the motion court must direct postconviction counsel to file an amended motion within the time allotted by the motion court., On November 20, 2013, Mr. Latham timely filed his pro se Rule 24.035 motion for postconviction relief. His pro se motion alleged three claims: (1) counsel was ineffective for failing to investigate why his preliminary hearing3 was waived; (2) counsel was ineffective for failing to spend sufficient time with him to defend him at the revocation hearing; and (3) counsel was ineffective in that she misled him into believing she would request long-term drug treatment at his sentencing hearing. On December 11, 2013, the motion court appointed the public defender's office4 to represent Mr. Latham. Because the transcript of his guilty plea was filed on March 25, 2014, Mr. Latham's amended motion was due May 27, 2014.5, Mr. Latham's postconviction counsel did not file an amended motion by the 60-day deadline in Rule 24.035(g). Instead, on June 20, 2014, postconviction counsel filed a statement in lieu of an amended motion. In the statement, postconviction counsel said he had requested all pertinent documents for review, including transcripts, motions, and case files. He further stated his associate interviewed Mr. Latham by phone on May 21, 2014. Counsel concluded by stating, although he originally believed Mr. Latham might have an ineffective assistance of counsel claim regarding \the elements of the crime charged
Published | \" further research proved Mr. Latham \"was sentenced under the old law prior to the change becoming effective.\"
Conclusion
A presumption of abandonment arose when Mr. Latham's postconviction counsel failed to file either an amended motion or a statement in lieu of an amended motion within Rule 24.035(g)'s 60-day deadline. The motion court's judgment is reversed, and the case is remanded.
All concur.