JACOB MONTGOMERY CORWIN v. STATE OF MISSOURI

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Missouri Court of Appeals, Southern District.

JACOB MONTGOMERY CORWIN, Appellant, v. STATE OF MISSOURI, Respondent.

No. SD 34619

Decided: September 11, 2017

(Before Bates, J., Scott, J., and Francis, J.) Appellant's attorney: Margaret M. Johnston Respondent's attorneys: Joshua D. Hawley, Att. Gen., and Nathan J. Aquino, Asst. Atty. Gen.

Jacob Corwin appeals the denial of his Rule 29.15 motion.1 We agree with both parties that we must reverse and remand per Moore v. State, 458 S.W.3d 822 (Mo. banc 2015).

After we affirmed Corwin's conviction for attempted forcible rape (State v. Corwin, 295 S.W.3d 572 (Mo.App. 2009)), he timely moved pro se for Rule 29.15 relief. Appointed counsel filed an untimely amended motion. Seven months later, newly retained counsel filed a second amended motion that the motion court ultimately denied without first determining whether Corwin had been abandoned.2

When an amended motion is untimely, the motion court must independently inquire and determine whether abandonment occurred. Moore, 458 S.W.3d at 825. Such an inquiry is necessary to determine which motion should be adjudicated. Id. at 826. “When the independent inquiry is required but not done, this Court will remand the case because the motion court is the appropriate forum to conduct such an inquiry.” Id.

We reverse and remand to the motion court to conduct a Moore abandonment inquiry and for further proceedings consistent with Rule 29.15. Other points on appeal are denied as moot.

FOOTNOTES

1.   We address two consolidated appeals, one from the motion court's original order (SD34619) and one from a later amended order (SD34721).

2.   Although the motion court requested a proposed order concerning abandonment, the record contains no order (proposed or otherwise) determining the matter.

PER CURIAM.