Anthony Smith, Appellant v. State of Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Anthony Smith, Appellant v. State of Missouri, Respondent. Case Number: WD66129 Handdown Date: 03/06/2007 Appeal From: Circuit Court of Jackson County, Hon. Kelly J. Moorhouse Counsel for Appellant: Anthony Smith, Pro Se Counsel for Respondent: Shaun Mackelprang and Jayne T. Woods Opinion Summary: Anthony Smith appeals the trial court's overruling his motion to reopen post-conviction proceedings stemming from his convictions for attempted first-degree robbery and armed criminal action. In his motion, Smith asserted that his post- conviction counsel abandoned him by failing to include in his amended Rule 29.15 motion a claim that the state improperly relied at trial upon contradictory theories of the crime committed. AFFIRMED. Division holds: Post-conviction counsel's failure to include all claims asserted in movant's pro se motion does not constitute abandonment of counsel for purposes of Rule 29.15. Smith's motion to reopen does not plead facts that, if proven, would constitute abandonment, therefore, the judgment of the motion court is affirmed. Citation: Opinion Author: Ronald R. Holliger, Presiding Judge Opinion Vote: AFFIRMED. Spinden, J., and Hardwick, J., concur.

Opinion: Anthony Smith appeals the denial of his motion to reopen his original Rule 29.15 post conviction motion on the ground that the motion court lacked jurisdiction to hear the case. He contends that his original post-conviction counsel abandoned him by failing to include a claim in his amended Rule 29.15 motion. Because the claimed action of counsel does not legally constitute abandonment under Missouri law, the motion court properly denied his motion. Judgment affirmed. Facts Anthony Smith ("Smith") was convicted of first-degree robbery and armed criminal action. He was denied post-conviction relief in 1996. Subsequently his conviction and appeal from his post-conviction relief denial were affirmed. In the motion now at issue, he seeks to have his post-conviction proceeding reopened. Smith claims that, although his post-conviction counsel filed an amended Rule 29.15 motion, he was "abandoned" by counsel because of her failure to assert a particular claim. The motion court denied relief under Rule 75.01 and refused to reopen his post-conviction proceeding on the basis of abandonment. Smith appeals these rulings. Smith Not Entitled to Relief under Rule 75.01 Smith first contends that he is entitled to relief under Rule 75.01, which permits the court to re-open its judgment. That power is limited, however, to thirty days after judgment is entered. This time limit applies to a request to re-open Rule 29.15 proceedings. Edington v. State, 189 S.W.3d 698, 701 (Mo. App. W.D. 2006). Smith did not file his motion within 30 days of judgment and the original motion court lost jurisdiction after that time. Id. Point denied. Smith Was Not Abandoned by Post-Conviction Counsel

Smith next claims that he is entitled to re-open his post-conviction proceeding because he was abandoned by counsel who failed to include a claim he asserts should have been included in the amended motion. We have held that the court does have jurisdiction to re-open the case if the movant is abandoned. Id. The motion court's finding that he was not abandoned is not clearly erroneous. Abandonment sufficient to give the court jurisdiction is limited to two circumstances: (1) failure of counsel to take any action to prepare an amended motion and (2) failure to file timely amended motion when counsel is aware of the need to do so. Id. Movant has not plead or proved abandonment of this type. Point denied. The judgment is affirmed. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.