SUPREME COURT OF MISSOURI

en banc

MARK D. VOGL, ) 

 ) 

 Appellant, ) 

 ) 

v. ) No. SC93157 

 ) 

STATE OF MISSOURI, ) 

 ) 

 Respondent. ) 

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY 

The Honorable David C. Dally, Judge 

Opinion issued August 19, 2014 

The motion court dismissed Mark Vogl’s Rule 24.035 motion for post-conviction 

relief, without an independent inquiry, after appointed post-conviction counsel filed a 

motion to rescind appointment of counsel that informed the court that Mr. Vogl’s pro se

motion was stamped “filed” after the last day permitted by the rule. Thereafter, Mr. Vogl 

filed the motion at issue to reopen his post-conviction proceedings, claiming that his counsel 

abandoned him by failing to investigate the timeliness of his post-conviction motion before 

counsel filed a motion to rescind appointment of counsel. The motion court entered 

judgment overruling Mr. Vogl’s motion. Mr. Vogl appeals. After an opinion by the court 

of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10. Because the record raises 

the presumption that Mr. Vogl was abandoned by his post-conviction counsel, the motion 

court clearly erred in dismissing Mr. Vogl’s motion. The judgment is reversed, and the 

cause is remanded. 

1 
2 

 

Facts and Procedural Background

On June 21, 2007, Mr. Vogl pleaded guilty to two felony counts of first-degree 

statutory sodomy under section 566.062.1

 He then was sentenced by the circuit court to 15 

years imprisonment on each count, with the sentences to run concurrently. After 

pronouncing the sentence, the circuit court informed Mr. Vogl of his right to seek postconviction relief under Rule 24.035. On September 18, 2007, Mr. Vogl was delivered to the 

Missouri Department of Corrections (“DOC”) to serve his sentence. He did not appeal his 

conviction. 

Under Rule 24.035, Mr. Vogl had to file a timely Rule 24.035 motion to seek postconviction relief.2

 In light of his delivery date to the DOC, Mr. Vogl’s post-conviction 

motion had to be filed on or before March 17, 2008.3

 The docket sheet and file stamp on 

Mr. Vogl’s motion reflect that his pro se motion was filed in the Joplin office of the Jasper 

County circuit clerk on March 18, 2008. 

1

 All statutory references are to RSMo Supp. 2013, unless otherwise specified. 

2

 Rule 24.035(b) provides: 

 A person seeking relief pursuant to this Rule 24.035 shall file a motion to 

vacate, set aside or correct the judgment or sentence substantially in the form 

of Criminal Procedure Form No. 40. 

* * * 

If no appeal of such judgment was taken, the motion shall be filed within 180 

days of the date the person is delivered to the custody of the department of 

corrections. 

3

 In computing the due date, the date that Mr. Vogel was delivered to the DOC is not 

included in the 180 days. See 44.01(a); Phelps v. State, 351 S.W.3d 269, 270-71 (Mo. App. 

2011). The actual last date for Mr. Vogl’s Rule 24.035 motion to be filed would have been 

Sunday, March 16, 2008. However, Rule 44.01(a) provides that if a period of time ends on 

a Saturday, Sunday, or legal holiday, the deadline is extended to the end of the next day that 

is not a Saturday, Sunday, or legal holiday. Therefore, the time period for Mr. Vogl to file 

his Rule 24.035 motion ended on Monday, March 17, 2008. 
3 

Upon the filing of Mr. Vogl’s post-conviction motion, the motion court appointed 

post-conviction counsel to represent Mr. Vogl in the proceeding. Thirteen days later, 

Stephen J. Harris, the area district defender for the Missouri State Public Defender, filed a 

motion requesting that the appointment of counsel be rescinded. In his motion, appointed 

counsel alleged that Mr. Vogl’s Rule 24.035 motion was untimely because Mr. Vogl was 

delivered to the department of corrections on September 18, 2007, and Mr. Vogl’s motion 

was stamped “filed” 182 days later. The certificate of service indicates that the motion to 

rescind was served only on the prosecuting attorney, and there is nothing in the circuit court 

record to indicate that Mr. Vogl received service or notification of appointed counsel’s filing 

of the motion to rescind appointment of counsel. Six days later, without a hearing or 

independent inquiry, the motion court entered an order rescinding its previous order 

appointing counsel and dismissing the case with prejudice because the court found that 

“[f]urther review of the file indicates that the motion was not timely filed.” 

On March 17, 2011, Mr. Vogl filed a motion titled “Motion to Reinstate Postconviction Action Brought Pursuant To Rule 24.035 On Basis of Timely Filing, And To 

Vacate Order Rescinded [sic] Appointment of Counsel and Dismissing 24.035 Action.” 

Specifically, the 2011 motion claimed that his pro se Rule 24.035 motion was timely filed 

and, even if filed in the wrong court, should have been considered timely filed and 

transferred to the proper court rather than dismissed. In addition, Mr. Vogl alleged that he 

had been abandoned by his appointed counsel. On November 4, 2011, the motion court, 

without holding an evidentiary hearing, entered an order refusing to take any further action 
4 

 

on the basis that Mr. Vogl’s post-conviction proceedings previously had been dismissed 

with prejudice due to untimely filing.4

 

On May 11, 2012, Mr. Vogl filed the pro se motion presently at issue requesting that 

the motion court adjudicate his post-conviction proceedings because he was abandoned by 

his appointed counsel.5

 In his motion, Mr. Vogl requested that the motion court hold an 

4 Judge Wilson, in his dissent, would find that the disposition of Mr. Vogl’s March 17, 2011, 

motion precludes consideration of Mr. Vogl’s current motion claiming abandonment by 

post-conviction counsel. Judge Fischer agrees, using multiple references in his dissent to 

Mr. Vogl’s current motion being the third motion he has filed. The state did not assert in the 

court of appeals or in this Court that the disposition of Mr. Vogl’s March 17, 2011, motion 

is a procedural bar to the adjudication of his current motion. Nevertheless, the dissents, sua 

sponte, raise this issue that was not briefed or argued relying on Rule 24.035(l)’s prohibition 

of successive motions. The context of the prohibition in Rule 24.035(l) makes it clear that 

the rule references only post-conviction motions and not motions raising claims of 

abandonment by post-conviction counsel because Rule 24.035 does not reference or 

establish procedures for claims of abandonment. Likewise, this Court’s holdings that there 

cannot be a waiver of the mandatory time limits in Rule 24.035 are referencing the deadlines 

for the filing of initial motions for post-conviction relief and were not made in the context of 

motions claiming abandonment by post-conviction counsel. See Price v. State, 422 S.W.3d 

292, 297 (Mo. banc 2014); Dorris v. State, 360 S.W.3d 260, 266-69 (Mo. banc 2012); Smith 

v. State, 887 S.W.2d 601, 602-03 (Mo. banc 1994). 

Judge Fischer and Judge Wilson urge in their dissents that this Court deny Mr. Vogl’s claim, 

citing cases that would allow this Court, sua sponte, to find that the doctrine of res judicata

bars review. Because the motion court dismissed Mr. Vogl’s current abandonment claim as 

procedurally barred on the ground that his Rule 24.035 action was dismissed with prejudice 

for the untimely filing of his original pro se motion and Mr. Vogl’s claim of abandonment 

never has been adjudicated on the merits, this Court declines to do so. 

5 Mr. Vogl titled his pleading a “Motion to Reopen Postconviction Proceeding and Request 

for Hearing.” In Eastburn v. State, this Court held that the proper terminology for a motion 

claiming abandonment of post-conviction counsel is a motion for post-conviction relief due 

to abandonment and not a motion to reopen post-conviction proceedings. 400 S.W.3d 770, 

774 (Mo. banc 2013). This case, like Eastburn, does not allege active interference in the 

timely filing of the original motion but, rather, that appointed post-conviction counsel 

abandoned him by not proceeding as required by Rule 24.035(e). The terminology 

suggested by Eastburn has led to confusion between motions claiming abandonment and 
5 

 

evidentiary hearing to determine the merits of his claim of abandonment. For support, 

Mr. Vogl made the following allegations pertaining to the filing of his pro se motion and his 

appointed counsel’s representation: 

● The April 16, 2008 motion to rescind appointment of counsel filed by postconviction counsel was filed without any consultation with Mr. Vogl. 

 

● If post-conviction counsel had consulted with Mr. Vogl, he would have 

obtained facts that would have proved the timely filing of Mr. Vogl’s motion. 

● Post-conviction counsel’s alleged failure to investigate the circumstances 

surrounding the filing of Mr. Vogl’s Rule 24.035 motion before filing the 

motion to rescind appointment of counsel constituted abandonment and 

noncompliance with Rule 24.035 because he filed neither an amended motion 

for post-conviction relief nor a statement explaining that all facts and claims 

had been asserted in the pro se motion. 

 

● Mr. Vogl never received notification that his counsel intended to file a motion 

to rescind counsel’s appointment. If he had been notified, he would have 

attempted to contact the court to request a hearing on the motion. 

Attached to Mr. Vogl’s motion were two exhibits – letters from the Jasper County circuit 

clerk’s office written in response to Mr. Vogl’s inquiries regarding the Jasper County circuit 

clerk’s office procedures for receiving and forwarding mail from one clerk’s office to the 

other. 

Jasper County maintains two courthouses – one in Carthage, which is the county seat, 

and the other in Joplin. Mr. Vogl alleges that he mailed his pro se Rule 24.035 motion to 

the Jasper County circuit clerk’s office in Carthage on March 12, 2008, and it arrived there 

on March 17, 2008. On the same day, after recognizing that the file regarding his criminal 

motions for post-conviction relief, as evidenced by the dissents. To avoid such confusion, 

Mr. Vogl’s motion will be referred to as a motion claiming abandonment by post-conviction 

counsel. 
6 

 

conviction was at the Joplin office, the Carthage office forwarded the motion to the Joplin 

office without first stamping the motion as filed. When the Joplin office received 

Mr. Vogl’s pro se motion, it then stamped it “filed” for the first time on March 18, 2008. 

 The first letter attached to Mr. Vogl’s motion articulates the clerk’s office procedure 

when forwarding mail to the correct office location. The letter states that the Carthage 

office received Mr. Vogl’s motion, determined that it belonged in the Joplin office, and sent 

it to the Joplin office a day later. Specifically, the letter states: 

1. Mail is received in whichever office the envelope is addressed to (in the 

above referenced case, Jasper County Clerk – not Jasper County Circuit 

Clerk – two (2) totally different offices); 

2. When mail is opened and determined to belong to a different office in the 

Courthouse, the mail is taken to the correct office (in this case the correct 

office was the Jasper County Circuit Clerk’s office); 

3. Jasper County Circuit Clerk’s Office in Carthage determined your original 

case was handled in the Joplin location and any subsequent filings must 

also be filed in the Joplin location and placed your documents in a basket 

for our “runner” to pick up to deliver to Joplin. Our “runner” picks up 

every afternoon in Carthage and delivers to the Circuit Clerk’s Office in 

Joplin the following morning. He also delivers mail received in Joplin that 

needs to go to Carthage. 

After receiving the first letter, Mr. Vogl wrote a letter, dated June 27, 2010, to the 

Jasper County circuit clerk asking when his pro se post-conviction motion initially was 

received by the Carthage office, not when the Joplin office received it after the Carthage 

office forwarded it.6

 The second letter from the clerk’s office was written in response to 

6 Consistent with Mr. Vogl’s allegation regarding the handling of his pro se motion, his 

letter was stamped “filed” in the clerk’s Carthage office on July 1, 2010. That file stamp is 

crossed out. A second file stamp by the circuit clerk’s Joplin office is dated July 2, 2010. In 

addition, the fact that Mr. Vogl’s letter was dated June 27, 2010, and stamped as filed for 

the first time on July 1, 2010, supports his contention that a letter leaves the DOC in 
7 

 

Mr. Vogl’s June 27, 2010, letter. It states that, if it takes three days for Mr. Vogl’s motion 

to get from Cameron to the Carthage office as Mr. Vogl had said, then it would follow that 

the Carthage office received his pro se motion on March 17, 2008. The deputy circuit clerk 

further stated that the envelope containing the original pro se motion was not in the clerk’s 

file. The actual text of the letter states: 

According to your letter dated March 12, 2008, your Motion was being mailed 

without copies since your housing unit was locked down and it needed to be 

mailed immediately. It is my presumption that your Motion went out in the 

next morning’s mail, being Thursday, March 13, 2008. If, as you state, mail 

takes three (3) days from Cameron to Carthage, that would put it being 

received on Sunday, March 16, 2008 on which there is no mail delivery 

subsequently being delivered to our Carthage office on Monday, March 17, 

2008 and received in our Joplin office on Tuesday, March 18, 2008. 

On Mondays, when we receive an abundant amount of mail, it is our normal 

procedure for mail to be delivered to another office to stamp one (1) envelope 

with the date received and then rubber band anything else to that piece of 

mail. 

The motion court overruled Mr. Vogl’s motion and request for evidentiary hearing. 

The court stated that Mr. Vogl’s post-conviction action previously had been dismissed with 

prejudice as untimely. Thereafter, Mr. Vogl timely appealed. The case was transferred to 

this Court after opinion by the court of appeals. Mo. Const. art. V, sec. 10. 

Standard of Review

 When a motion court overrules a motion claiming abandonment by post-conviction 

counsel, appellate review is limited to a determination of whether the motion court’s 

findings and conclusions are clearly erroneous. Gehrke v. State, 280 S.W.3d 54, 56 (Mo. 

Cameron the day after it is dated and takes three days to be delivered from Cameron to the 

circuit clerk’s office in Carthage. 
8 

 

banc 2009). After reviewing the entire record, a motion court’s findings and conclusions are 

clearly erroneous only if the reviewing court is “left with the definite and firm impression 

that a mistake has been made.” Price v. State, 422 S.W.3d 292, 294 (Mo. banc 2014).7

Analysis

Mr. Vogl claims that the motion court erred in overruling, without an evidentiary 

hearing, his motion claiming abandonment by post-conviction counsel. In his motion, 

Mr. Vogl alleges that post-conviction counsel abandoned him by not investigating to 

ascertain the facts regarding the timeliness of the filing of his pro se post-conviction 

motion.8

 Mr. Vogl alleges in his motion that, if post-conviction counsel would have 

7

 In Price, the movant filed a post-conviction motion pursuant to Rule 29.15, which is the 

post-conviction rule applicable to movants convicted of a felony after trial. Rule 29.15 

contains certain substantive provisions that are identical to provisions in Rule 24.035, 

applicable to movants who have pleaded guilty. See Rule 29.15. Accordingly, case law 

interpreting a provision that is identical in both rules applies equally in proceedings under 

either rule. See Moore v. State, 934 S.W.2d 289, 290 (Mo. banc 1996). 

8

 While Judge Fischer’s dissent asserts, sua sponte, that any claim of abandonment should 

be raised during the course of a movant’s initial post-conviction proceeding, this Court has 

held otherwise. In State ex rel. Nixon v. Jaynes, this Court suggested in dicta that a movant, 

by raising a claim of abandonment, could seek post-conviction relief more than ten years 

after the motion court had overruled the movant’s initial pro se post-conviction motion. 63 

S.W.3d 210, 217-18 (Mo. banc 2001). Then, in a 2008 decision, this Court addressed the 

issue raised by Judge Fischer’s dissent in this case and expressly held that “the abandonment 

doctrine provides a narrow exception permitting the circuit court to re-open an otherwise 

final post-conviction case.” Taylor v. State, 254 S.W.3d 856, 858 (Mo. banc 2008). Since 

Taylor, this Court has continued to address claims of abandonment raised in motions that, 

like Mr. Vogl’s, were made after all opportunities to challenge the motion court’s initial 

denial of post-conviction relief, whether it be via a Rule 75.01 motion, direct appeal, or a 

motion for leave to file an appeal out of time, had expired. See Eastburn, 400 S.W.3 at 774 

(motion claiming abandonment by appointed counsel was filed approximately 13 years after 

the motion court denied initial relief); Gehrke, 280 S.W.3d at 57 (motion claiming 

abandonment by appointed counsel was filed more than seven years after the motion court 

denied relief); Crenshaw v. State, 266 S.W.3d 257, 259 (Mo. banc 2008) (motion claiming 
9 

 

contacted him regarding the circumstances of the filing of the pro se post-conviction motion 

rather than relying on the erroneous file stamp, counsel would have learned that the pro se 

motion was, in fact, filed timely. Specifically, he alleges that appointed counsel would have 

discovered that Mr. Vogl’s motion was received timely by the Jasper County circuit clerk 

but was stamped with an incorrect date by the circuit clerk. 

In Jasper County, there is a courthouse in Carthage, the official county seat. Jasper 

County maintains a second courthouse in Joplin, as authorized by section 71.300, RSMo 

2000. The Jasper County circuit clerk has offices in both courthouses. The documents 

attached to Mr. Vogl’s motion state that the circuit clerk has a practice of stamping 

documents received by the circuit clerk’s office as “filed” only when the document is 

received by the office where the file for the case is physically located. Under the 29th 

Judicial Circuit’s local court rule, Local Rule 4.3, “all circuit court actions shall be filed 

abandonment by appointed counsel was filed more than two years after the motion court 

denied relief). 

Judge Fischer’s dissent concedes that the aforementioned cases from this Court 

permit the filing of a motion to reopen otherwise final post-conviction proceedings. 

Nevertheless, his dissent asserts that the decisions in these cases are not precedent for 

finding that Mr. Vogl’s motion is not procedurally barred. In reaching that conclusion, 

Judge Fischer misinterprets this Court’s decision in Taylor when he states that Taylor’s 

“pronouncement that abandonment of post-conviction counsel serves as a ‘narrow 

exception’ to [Rule 75.01] . . . was not necessary to the judgment, and is not a ‘holding’ of 

this Court.” To the contrary, this Court’s holding in Taylor was a consideration of whether 

a motion claiming abandonment filed after a post-conviction judgment is final was 

procedurally barred, and the Court found that it was not. Taylor, 254 S.W.3d at 858. The 

Court then ruled on the merits of Mr. Taylor’s claim of abandonment. Id. This discussion 

by the Court in Taylor is not dictum. State ex rel. Anderson v. Hostetter, 140 S.W.2d 21, 24 

(Mo. 1940) (dicta are “expressions of opinion, not in anywise necessary for the actual 

decision of any question before the court”). 
10 

 

with the Circuit Court Clerk of this County in Joplin or Carthage.” Because Mr. Vogl’s pro 

se motion was an initial pleading commencing an independent civil action, see Cowans v. 

State, 778 S.W.2d 758, 761 (Mo. App. 1989), he was permitted to file it in either Joplin or 

Carthage per Local Rule 4.3. 

Moreover, the offices are one and the same, and documents are filed when they are 

received by either office. A pleading is deemed filed at the time it is received by the clerk 

of a circuit court. Rule 43.02(b). See also Stephan v. World Wide Sports, Inc., 502 S.W.2d 

264, 269 (Mo. 1973).9

 Accordingly, upon receipt of a pleading, the Jasper County circuit 

clerk immediately should stamp the pleading as filed, regardless of whether the clerk 

believes it would go into a file at the clerk’s office in the other Jasper County courthouse. If 

the clerk did not do so and, instead, forwarded the pleading to a different office location 

without a file stamp, the Jasper County circuit court would have been operating under 

procedures that are contrary to Rule 43.02(b).10 Therefore, if Mr. Vogl can prove that his 

pro se motion arrived at either office of the circuit clerk of Jasper County on or before 

March 17, 2008, the motion was filed timely. 

 In this appeal, Mr. Vogl claims that counsel’s failure to ascertain the true date of 

filing and subsequent failure to file an amended motion alleging facts to prove the timeliness 

9 Stephan cites to former Rule 43.01(j), the subject matter of which now is articulated in 

Rule 43.02. 502 S.W.2d at 269. Rule 43.02(b) provides that “the filing of pleadings and 

other papers with the court as required by Rules 41 through 101 shall be made by filing 

them with the clerk of the court[.]” 

10 On November 18, 2013, Japser County implemented an electronic filing system, which 

likely has eliminated the practice of forwarding court filings to another office location in 

most cases. Electronic filing is not available to pro se litigants, however, so it will not 

eliminate the practice in post-conviction cases. 
11 

 

of his pro se motion constitutes abandonment. He maintains that he is entitled to an 

evidentiary hearing on his motion claiming abandonment by post-conviction counsel so he 

can have the opportunity to offer proof of the facts alleged in his motion. Ultimately, 

Mr. Vogl seeks to have his Rule 24.035 claims adjudicated on their merits.11

Rule 24.035 provides the exclusive procedure by which a person convicted of a 

felony on a guilty plea may seek post-conviction relief. Rule 24.035(a). As a threshold to 

achieving post-conviction relief, the movant first must file a timely Rule 24.035 motion. 

Rule 24.035(b). See also Price, 422 S.W.3d at 296. When a pro se motion is filed by an 

indigent movant, the court shall cause counsel to be appointed to represent the movant. 

Rule 24.035(e). Thereafter, appointed counsel must file either an amended motion to 

compensate for any deficiencies in the pro se motion or, in the alternative, a statement 

explaining the actions counsel took to ensure that no amended motion is needed. Rule 

24.035(e). 

In a motion filed pursuant to Rule 24.035, the movant “must allege facts showing a 

basis for relief to entitle the movant to an evidentiary hearing. The movant also must allege 

facts establishing the motion is timely filed.” Dorris v. State, 360 S.W.3d 260, 267 (Mo. 

banc 2012). In addition to making said factual allegations, the movant also must prove 

those allegations. Id. The burden of alleging and proving that the motion is timely filed can 

be met by the movant in one of three ways: (1) by filing the original pro se motion timely so 

11 If the motion court determines, after an inquiry, that Mr. Vogl was abandoned, the 

appropriate remedy is the appointment of new counsel with the allowance of time for that 

counsel to proceed anew as required by Rule 24.035(e). Price, 422 S.W.3d at 298; Luleff v. 

State, 807 S.W.2d 495, 498 (Mo. banc 1991).
12 

 

that the file stamp on the motion reflects that it is filed within the time limits proscribed in 

the rule; (2) alleging in the original pro se motion and proving by a preponderance of the 

evidence that the movant’s circumstances fall within a recognized exception to the time 

limits; or (3) alleging in the amended motion and proving by a preponderance of the 

evidence that the circuit court misfiled the motion.12 Id. If the timely filing of an original 

post-conviction motion is not proven, the motion court will regard the untimely motion as a 

“complete waiver” of any right to proceed under Rule 24.035. Rule 24.035(b); Price, 522 

S.W.3d at 296. 

The first two methods to prove timely filing were not available to Mr. Vogl as the 

date of filing reflected on his original pro se motion is a date past the filing deadline and, at 

the time he drafted his pro se post-conviction motion, he could not have been aware of that 

fact. Therefore, Mr. Vogl was left with only the last method of proving timeliness – filing 

an amended motion alleging facts and then proving that the court misfiled his original pro se 

motion.13 Id. Because appointed counsel did not file an amended motion, Mr. Vogl was 

deprived of the opportunity to employ this method of proof. 

Unlike an original motion, which the movant is responsible for pleading and filing, 

an amended motion is a final pleading, which requires legal expertise. Gehrke, 280 S.W.3d 

12 It is possible that a movant would not be aware that movant’s circumstances fall within a 

recognized exception to the filing time limits of the post-conviction rules at the time that the 

pro se motion was filed. Accordingly, a movant is given the opportunity to raise those 

allegations in an amended motion. 

13 When a pro se post-conviction motion is received by a circuit clerk’s office before the end 

of the filing period set by rule but appears to be untimely due to clerk error, the motion is, in 

fact, filed timely. See Graves v. State, 372 S.W.3d 546, 549 (Mo. App. 2012); Phelps v. 

State, 21 S.W.3d 832, 833 (Mo. App. 1999). 
13 

at 57. Therefore, even though the burden of proving that the original pro se motion was 

filed timely continues to rest with the movant, alleging said timeliness through an amended 

motion requires the movant to depend on post-conviction counsel. This dependency is 

recognized in Rule 24.035, which articulates the duties owed by appointed counsel to a 

movant. Rule 24.035 reads: 

Counsel shall ascertain whether sufficient facts supporting the claims are 

asserted in the motion and whether the movant has included all claims known 

to the movant as a basis for attacking the judgment and sentence. If the 

motion does not assert sufficient facts or include all claims known to the 

movant, counsel shall file an amended motion that sufficiently alleges the 

additional facts and claims. If counsel determines that no amended motion 

shall be filed, counsel shall file a statement setting out facts demonstrating 

what actions were taken to ensure that (1) all facts supporting the claims are 

asserted in the pro se motion and (2) all claims known to the movant are 

alleged in the pro se motion. 

Rule 24.035(e) (emphasis added). 

As stated by Rule 24.035(e), appointed counsel is charged with the duty to 

“ascertain” whether the pro se motion asserts sufficient facts to support the movant’s claims 

for relief and ensure that the movant has included all claims “as a basis for attacking the 

judgment and sentence.” Id. Inherent in the “sufficient facts to support the movant’s claims 

for relief” are facts that would prove the timely filing of the original pro se motion because 

a movant is prohibited from proceeding in a post-conviction action if the original motion 

was filed untimely. Rule 24.035(b); Dorris, 360 S.W.3d at 267. 

Mr. Vogl asserts that appointed counsel’s failure to ascertain that there were facts 

that would prove the timeliness of his pro se motion and to file an amended motion alleging 

those facts constitutes abandonment sufficient to allow him a remedy. In Price, this Court 

recently clarified what circumstances will constitute abandonment by post-conviction 
14 

 

counsel. 422 S.W.3d at 298-307. Reaffirming Luleff v. State, 807 S.W.2d 495 (Mo. banc 

1991), and Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991), Price held that “a client is 

not bound by the actions or inactions of his counsel [when] . . . the client is an indigent 

inmate who initiates a timely post-conviction proceeding and his court-appointed counsel’s 

failure to fulfill the duties imposed by Rule [24.035] is not merely incompetent but 

tantamount to the motion court having failed to appoint counsel at all.” 422 S.W.3d at 303. 

A movant is abandoned when appointed counsel fails to comply with the requirements in 

Rule 24.035(e) by not filing either an amended motion or a statement setting out facts that 

demonstrate the actions that were taken to ensure that an amended motion is not needed. Id. 

This Court has outlined when a motion court is required to conduct an independent 

inquiry of a claim of abandonment of a post-conviction movant by appointed counsel. See 

McDaris v. State, 843 S.W.2d 369, 371 (Mo. banc 1992);14 Moore v. State, 934 S.W.2d 289 

(Mo. banc 1996). In McDaris ̧ appointed counsel filed an amended Rule 24.035 motion two 

days late. 843 S.W.2d 369 at 371. The state filed a motion to dismiss both the pro se and 

amended motions for post-conviction relief. Id. Regarding the state’s allegation that the 

amended motion was filed after the deadline, there was an in-court inquiry by the motion 

court of appointed counsel regarding the reason for the late filing of the amended motion. 

Id. Counsel advised the motion court that counsel had difficulty getting the amended 

14 There has been confusion as to whether McDaris was overruled by State v. Carson, 941 

S.W.2d 518, 520 (Mo. banc 1997). While the appendix in Carson listing the cases it 

overrules includes McDaris, the reference to McDaris was only for the purpose of indicating 

that State v. Lucas, 809 S.W.2d 54 (Mo. App 1992), which was being overruled by Carson, 

previously was overruled by McDaris on other grounds. Therefore, the decision in McDaris 

is still good law and of precedential authority. 
15 

motion “back from the penitentiary and filing it,” but claimed to have filed it as soon as 

receiving it in the mail from Mr. McDaris. Id. The motion court dismissed the amended 

motion and overruled Mr. McDaris’s pro se motion without further inquiry. Id. 

Mr. McDaris appealed the motion court’s judgment, alleging “that motion counsel 

abandoned him by failing to file the amended motion on time, or at least that the trial court 

did not adequately investigate abandonment.” Id. This Court ruled that the motion court’s 

inquiry was insufficient. Id. at n.1. The Court held: 

[T]he trial court should, as part of its independent inquiry under Luleff, inquire 

not only of postconviction counsel, but ensure that movant is informed of 

counsel’s response and given an opportunity to reply. The method of making 

this inquiry may be as formal or informal as the motion court deems necessary 

to resolve the question of abandonment by counsel, including, but not limited 

to, a written response and opportunity to reply, a telephone conference call, or 

a hearing. However, a sufficient record must be made to demonstrate on 

appeal that the motion court’s determination on the abandonment issue is not 

clearly erroneous. 

Id. 

Two post-conviction movants, Dale E. Moore and Jacob Carr, cited this rule from 

McDaris as support for their assertions that there was not sufficient inquiry by the motion 

courts of their claims that they were abandoned by appointed counsel despite counsel filing 

timely statements that counsel had decided to rely on each movant’s pro se motion. Moore, 

934 S.W.2d at 290. The Court stated, “McDaris does not require a response from movants 

when postconviction counsel files a timely statement setting out sufficient reasons for 

counsel’s decision to rely on the pro se motion.” Id. The Court stated that, “where the 

record shows on its face that post-conviction counsel did not abandon movant, there is no 

need to proceed to such an inquiry.” Id. at 292. 
16 

 

The Court then reviewed the movants’ individual claims that they were abandoned by 

their appointed counsel, who each filed a statement that counsel had decided to rely on 

movant’s pro se motion rather than file an amended motion. Id. at 290. The Court reviewed 

the content of the appointed counsels’ statements. Id. at 290-91. The Court found that 

Mr. Moore was not abandoned because his appointed counsel’s timely affidavit “declared 

complete familiarity with the record and announced a reasoned decision that counsel would 

not file an amended motion” and “[t]here [was] simply nothing in the record to support a 

claim that postconviction counsel abandoned Moore.” Id . at 292.15 

In contrast, the Court found that the record in Mr. Carr’s case raised the presumption 

that he was abandoned by his appointed counsel. Id. Citing the requirement in Rule 

24.035(e) that counsel is required to “ascertain whether sufficient facts supporting the 

grounds are asserted in the motion and whether the movant has included all grounds known 

to him as a basis for attacking the judgment and sentence[,]” the Court found the statement 

filed by Mr. Carr’s counsel “shows on its face that counsel took neither of the two actions 

required by Rule 24.035(e).” Id. The Court found that counsel’s statement that he had 

reviewed Mr. Carr’s file “with the exclusion of the transcripts of the guilty plea hearing . . . , 

the sentencing hearing . . . , and movant’s pro se motion” was “tantamount to a confession 

of abandonment.” Id. at 290, 292 (internal quotation marks omitted). The Court found that 

15 The affidavit filed by Mr. Moore’s appointed counsel indicated that counsel “had 

reviewed the record, had inquired of movant regarding the existence of additional claims or 

facts relating to the post-conviction motion, had explained to movant his rights under Rule 

24.035 and determined that Moore's pro se motion ‘includes all colorable post-conviction 

claims known to movant or counsel.’” Id. at 290. 
17 

 

a McDaris hearing was required because “the face of the record raises the presumption of 

abandonment to which Luleff and Sanders refer.” Id. at 292. 

Accordingly, when the record raises a presumption of abandonment because 

appointed counsel has failed to comply with the requirements in Rule 24.035(e) that counsel 

file a timely amended motion or a statement setting out facts that demonstrate counsel’s 

actions to ensure no amended motion is needed, a motion court must conduct a sufficient 

independent inquiry of a post-conviction movant’s claim of abandonment. Moore, 934 

S.W.2d 289, 291-92; McDaris, 843 S.W2d at 371 n.1. When the record refutes the claim of 

abandonment, however, no independent inquiry is required of the motion court. Id. 

 Here, Mr. Vogl’s appointed counsel failed to comply with Rule 24.035(e) because he 

did not file either an amended motion or a statement setting out facts demonstrating that 

counsel took actions to ensure why no amended motion was needed. Instead, appointed 

counsel filed a motion to rescind appointment of counsel.16 Importantly, appointed 

counsel’s characterization of his request to terminate his representation of Mr. Vogl as a 

“motion to rescind appointment of counsel” rather than a “motion to withdraw” does not 

relieve counsel of his duty to provide Mr. Vogl with the representation required under Rule 

16 Mr. Vogl alleges – and the certificate of service and docket sheet reflect – that he never 

was notified that counsel filed the motion to rescind appointment of counsel. When counsel 

terminates representation of a client, counsel has a duty to protect the client’s interest; 

“[o]ne step necessary to protect a client's interest is giving notice to the client” of the 

attorney’s intention to terminate representation. In re Coleman, 295 S.W.3d 857, 866 (Mo. 

banc 2009). 
18 

 

24.035. No matter the nomenclature, counsel had responsibilities under Rule 24.035(e) that 

arose upon counsel’s appointment that counsel failed to fulfill.17 

The record in this case raises a presumption of abandonment by appointed counsel 

because it reflects that counsel did not comply with the requirements in Rule 24.035(e) by 

filing either an amended motion or a statement setting out facts demonstrating the actions 

taken by counsel ensured that no amended motion was necessary. Therefore, the motion 

court was required to conduct an independent inquiry of Mr. Vogl’s claim of abandonment. 

It did not do so. Accordingly, the motion court clearly erred in overruling Mr. Vogl’s 

motion claiming abandonment by post-conviction counsel. 

Conclusion

In post-conviction proceedings, an essential element of a movant’s claim in attacking 

the movant’s conviction and sentence is that the movant’s original pro se post-conviction 

motion was timely filed. If a timely filed motion appears to be filed untimely due to 

misfiling by the circuit court, a pro se movant may allege facts that prove the misfiling and 

the timeliness of the original motion in an amended motion filed by appointed postconviction counsel. When the record shows that appointed counsel did not file either an 

amended motion or a statement setting out facts demonstrating what actions counsel took to 

ensure that no amended motion was needed, there is a presumption of abandonment by 

17 The court of appeals has held that no abandonment occurs when appointed counsel 

notifies the motion court that a movant’s pro se motion was untimely without filing either 

an amended motion or a statement explaining why no amended motion is needed. Stewart 

v. State, 261 S.W.3d 678, 679 (Mo. App. 2008); Morgan v. State; 8 S.W.3d 151, 154 (Mo. 

App. 1999). This Court disagrees. To the extent Stewart and Morgan incorrectly held such 

inaction by appointed counsel does not constitute abandonment, the cases are overruled. 
19 

appointed counsel. Because the record in Mr. Vogl’s case shows that no amended motion or 

statement was filed by appointed counsel, it raises the presumption of abandonment, and the 

motion court erred in not conducting an independent inquiry. The judgment is reversed, and 

the cause is remanded. 

_________________________________ 

 PATRICIA BRECKENRIDGE, JUDGE

Russell, C.J., Stith, Draper, and 

Teitelman, JJ., concur; Fischer, J., 

dissents in separate opinion filed; 

Wilson, J., dissents in separate 

opinion filed. Fischer, J., concurs 

in opinion of Wilson, J. 
SUPREME COURT OF MISSOURI 

en banc 

MARK D. VOGL, ) 

 ) 

 Appellant, ) 

 ) 

v. ) No. SC93157 

 ) 

STATE OF MISSOURI, ) 

) 

Respondent. ) 

 DISSENTING OPINION 

I dissent from the principal opinion. In my view, the procedural posture of this 

case bars Vogl's requested relief. Vogl filed his original Rule 24.035 motion in March 

2008. After sustaining his post-conviction counsel's motion to rescind appointment, the 

motion court dismissed Vogl's Rule 24.035 motion in April 2008. Vogl did not appeal 

the motion court's dismissal. Rather, nearly three years later, Vogl filed a motion to 

reinstate his post-conviction proceedings, alleging that he had been abandoned by postconviction counsel. That motion was overruled, and the appeal of his claim of 

abandonment was dismissed. A year later, and a full four years after his initial motion 

was dismissed, Vogl filed his third Rule 24.035 motion, alleging for the second time that 

his appointed post-conviction counsel had abandoned him. In my view, this third motion 

is a successive post-conviction motion filed in violation of Rule 24.035(l) and Rule 75.01 
and is barred by res judicata. Had Vogl wished to assert his claim that he was abandoned 

or his claim that his original motion was timely filed, Vogl either should have filed a 

motion to vacate the motion court's judgment within that court's 30-day post-judgment 

control provided under Rule 75.01 or appealed the dismissal to the court of appeals. 

Vogl also could have filed a motion for leave to file a late notice of appeal within 12 

months after the judgment became final pursuant to Rule 30.03. Vogl's failure to pursue 

his abandonment claim on direct appeal of the dismissal precludes relief at this time. 

Further, the fact that Vogl has previously sought relief claiming abandonment, which was 

denied at the circuit court and appellate court levels, should result in the dismissal of this 

case based on res judicata.

1

Facts and Procedural History 

 In 2007, Vogl pleaded guilty to two counts of statutory sodomy in the first degree, 

a felony for which the authorized term of imprisonment is life imprisonment or a term of 

years not less than five years. Section 566.062, RSMo Supp. 2013. The circuit court 

sentenced Vogl to two concurrent terms of 15 years' imprisonment. Vogl does not allege 

that he is actually innocent of the crimes to which he pleaded guilty. Furthermore, Vogl 

does not allege that his guilty plea was not knowingly, voluntarily, and intelligently 

entered. Yet, the principal opinion approves the use of a procedure in direct conflict with 

the express terms of this Court's rules and creates new law—once again muddying the 

abandonment waters. It does so in order for Vogl, who does not now claim innocence or 

 

1

 The motion court in this case specifically stated as a basis for dismissal of his second 

abandonment claim that it had previously dismissed the original claim of abandonment. 

2
challenge the validity of his guilty plea, to have a hearing on the merits of whether he was 

abandoned, despite his failure to raise this claim in the normal course of the procedures 

previously permitted by this Court. Especially troubling is that this is Vogl's second

"motion to reopen" his post-conviction proceeding, and nothing in the principal opinion 

would prohibit him from filing yet another motion. 

Abandonment Claims Should Be Pursued on Direct Appeal According to McDaris

 It is my view that Vogl was required to raise any abandonment claim in the initial 

motion court or in a direct appeal of the dismissal of his initial post-conviction motion. 

The principal opinion's decision to grant Vogl relief on his "motion to reopen" postconviction proceedings, filed several years after his initial motion was overruled, is in 

direct conflict with this Court's rules. Rule 24.035(l) specifically provides, "The circuit 

court shall not entertain successive motions." And Rule 75.01 specifically provides that 

the circuit court loses control over any judgment 30 days after entry. Remanding Vogl's 

case for a merits hearing on Vogl's allegations of abandonment permits a successive 

motion in violation of the clear and express terms of these rules. 

 As stated above, this is the third Rule 24.035 motion that Vogl has filed (and the 

second motion claiming he was abandoned by post-conviction counsel). He filed his 

initial motion in March 2008, which the circuit court dismissed as untimely filed. Three 

years later, in March 2011, Vogl filed a "Motion to Reinstate Post-Conviction Action ... 

on Basis of Timely Filing," claiming he was abandoned by post-conviction counsel. The 

motion court dismissed that motion, stating, "This Court has previously dismissed this 

action with prejudice for failure to file Motion within the time allowed by the rules. This 

3
Court will take no further action on this file." Vogl appealed the motion court's action, 

and in May 2012, the court of appeals dismissed the appeal because Vogl failed to file the 

record on appeal. Vogl did not seek transfer to this Court. The principal opinion fails to 

explain why the failure to proceed with the appeal of that motion does not preclude the 

relief Vogl seeks here. 

The subject of this appeal is Vogl's third Rule 24.035 motion (his second motion 

claiming abandonment), titled "Motion to Reopen Post Conviction Proceeding" and filed 

in May 2012. The circuit court overruled the motion, stating, "As in my entry of 

November 4, 2011 the Court notes that this action was previously dismissed with 

prejudice for failure to file Motion within the time allowed by the rules. Motion to 

reopen is overruled." This case, therefore, represents Vogl's third bite at the postconviction apple.2

 

 This Court's rules, as written, outline the appropriate procedures for bringing and 

reviewing post-conviction motions. These same rules are designed to prevent 

unrestrained relitigation of claims that were, or should have been, brought in earlier 

proceedings. Specifically, three rules work in concert to achieve these goals. 

 

2

 Honoring Rule 24.035(l)'s prohibition against successive motions is particularly important 

because the only ineffective assistance of counsel claims that may be brought in a Rule 24.035 

motion for post-conviction relief after a guilty plea must allege that, due to counsel's 

ineffectiveness, the movant's guilty plea was not entered knowingly, voluntarily, and 

intelligently. Stanley v. State, 420 S.W.3d 532, 544 (Mo. banc 2014). In this case, Vogl's third 

motion merely alleged that he was abandoned by counsel, and his initial motion merely alleged 

that the sentencing judge "did not look at" a number of character reference letters and a letter 

from a doctor stating that Vogl should stay in therapy rather than go to prison. These allegations 

do not state a claim for relief under Rule 24.035. 

4
First, Rule 75.01 gives a circuit court control over a judgment for 30 days after the 

judgment is entered. That rule states, "The trial court retains control over judgments 

during the thirty-day period after entry of judgment and may, after giving the parties an 

opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its 

judgment within that time." During this period, a post-conviction movant can move the 

court to reopen his or her case or vacate the judgment on any number of grounds, 

including that the pro se motion had been timely filed or that post-conviction counsel 

failed to file an amended motion or a statement why no amended motion was required. 

After the expiration of this 30-day period, however, the circuit court loses control over 

the judgment and loses the authority to vacate or reconsider the proceeding. While this 

rule specifically grants the circuit court control over the judgment, it also affirmatively 

cuts off that control after 30 days, prohibiting the circuit court from taking any further 

action on the matter. 

 Second, a post-conviction movant is also entitled to an appeal of the circuit court's 

judgment pursuant to Rule 24.035(k). Subsection k permits the appellate courts to review 

the motion court's ruling and to determine whether the findings and conclusions of the 

trial court were clearly erroneous. If a post-conviction movant believes that the circuit 

court erroneously dismissed his or her Rule 24.035 motion as untimely, then the movant 

is entitled to appeal that determination to the court of appeals. The movant may argue 

there that the circuit court erroneously dismissed the initial motion as untimely filed, that 

counsel abandoned him, or that the motion court failed to make an abandonment 

determination. 

5
Lastly, Rule 24.035(l) prohibits the filing of a successive Rule 24.035 motion. 

Under the express terms of this rule, a post-conviction movant is required to bring any 

post-conviction claims in one motion. Any successively filed motions, including those 

masquerading as "motions to reopen" or "motions claiming abandonment" are 

specifically prohibited by the express terms of this rule. 

Abandonment, as originally conceived, was designed to fit within the framework 

of Rule 24.035(l), which granted an adequate opportunity for review, while also limiting 

the number of motions that could be filed and the time frame for review of an 

abandonment claim. When this Court created the abandonment doctrine, it also discussed 

the appropriate forum for the evaluation of such claims. As this Court discussed at length 

in Price v. State, 422 S.W.3d 292 (Mo. banc 2014), the abandonment doctrine in postconviction proceedings was introduced in Luleff v. State, 807 S.W.2d 495 (Mo. banc 

1991), and Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991). Luleff held that counsel's 

complete failure to file an amended motion or a statement why no such amended motion 

is necessary amounts to abandonment by post-conviction counsel. Luleff also addressed 

the question of the appropriate forum for addressing abandonment claims. 807 S.W.2d at 

497. Luleff determined that the initial motion court where the initial motion was being 

prosecuted is the correct place to address such claims, stating: 

If presented with an opportunity to address claims regarding postconviction 

counsel, the motion court could appoint new counsel, if necessary, at that 

time. Should the motion court conclude there is no basis for the movant's 

claim, a finding to that effect would alleviate the need for appellate courts 

to speculate as to what occurred in the circuit court. This Court holds that 

the appropriate forum for addressing claims regarding a complete absence 

of performance by postconviction counsel on a motion for postconviction 

6
relief is in the circuit court where the motion is being prosecuted by the 

movant. 

Id. Furthermore, this Court held that the motion court, during the initial post-conviction 

proceeding, has an obligation to determine whether the movant was abandoned by 

counsel prior to dismissing the initial post-conviction motion. Luleff stated: 

At such time as the motion court may proceed to rule a postconviction 

motion and there is no record of any activity by counsel on movant's behalf, 

the motion court shall make inquiry, sua sponte, regarding the 

performances of both movant and counsel. ... If the court determines ... 

that counsel has failed to act on behalf of the movant, the court shall 

appoint new counsel, allowing time to amend the pro se motion, if 

necessary, as permitted under [the post-conviction rules]. 

Id. at 498 (footnote omitted). 

Similarly, in Sanders, this Court determined that the initial motion court is the 

appropriate forum for addressing claims that a movant was abandoned due to counsel's 

failure to timely file an amended motion. 807 S.W.2d at 495. There, the Court stated: 

For the reasons enunciated in Luleff ... it is expedient to address in the 

motion court claims regarding failure of postconviction counsel to comply 

with the time requirements of [the post-conviction rules]. To conduct an 

inquiry into counsel's apparent failure in this regard does not run afoul of 

[the post-conviction rules' prohibition against the filing of successive 

motions]. The appropriate forum for addressing claims regarding failure of 

postconviction counsel to comply with the requirements of [the postconviction rules] is in the circuit court where the motion is being 

prosecuted by movant. 

Id. 

 In McDaris v. State, this Court outlined the procedure that the initial motion court 

is to follow when conducting the independent inquiry into whether a movant was 

abandoned by post-conviction counsel that Luleff and Sanders required. McDaris stated: 

7
Pending issuance of a Rule change, the trial court should, as part of its 

independent inquiry under Luleff, inquire not only of postconviction 

counsel, but ensure that movant is informed of counsel's response and 

given an opportunity to reply. The method of making this inquiry may be 

as formal or informal as the motion court deems necessary to resolve the 

question of abandonment by counsel, including, but not limited to, a written 

response and opportunity to reply, a telephone conference call, or a hearing. 

However, a sufficient record must be made to demonstrate on appeal that 

the motion court's determination on the abandonment issue is not clearly 

erroneous. 

843 S.W.2d 369, 371 n.1 (Mo. banc 1992) (emphasis added). This Court has the 

authority to make a rule change, but it has not changed the procedure set out in McDaris. 

 Following these rules and precedents, there is little doubt that the appropriate 

forum for addressing Vogl's abandonment claims was in the initial circuit court where the 

initial motion was filed. And there is little doubt that, under these precedents, the initial 

motion court should have made inquiry into whether Vogl was abandoned by counsel. If 

Vogl believed that the initial circuit court erroneously dismissed his motion, he was left 

with several options. He could have filed a motion to vacate the judgment within 30 days 

while the circuit court still had control over the judgment, or he could have appealed. 

Notably, and significant to the resolution of this case, Luleff and Sanders both involved 

direct appeals from initial motions in which this Court granted relief. 

Despite this precedent and the language of this Court's rules, the principal opinion 

permits, for the first time, a hearing on the merits of Vogl's abandonment claim raised in 

what is his third motion. I acknowledge that this Court has made several statements that 

purport to permit the filing of such a "motion to reopen" and that these cases characterize 

abandonment as an "exception" to Rule 75.01. However, in my view, these cases are not 

8
binding on any court because they rely entirely on dicta and have never been necessary to

resolve the issues presented. Moreover, these cases conflict with the rules and have led 

to an unending cycle of relitigation of "abandonment" claims, with some filings, as the 

principal opinion acknowledges, coming more than a decade after the initial motion was 

filed.3

 

As noted, the concept of the "motion to reopen" post-conviction proceedings first 

appeared in dicta. The first time this Court mentioned the possibility of a "motion to 

reopen" was in State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 217-18 (Mo. banc 2001). In 

Jaynes, an inmate petitioned the circuit court for a writ of habeas corpus, arguing that his 

appointed post-conviction counsel had a conflict of interest because post-conviction 

counsel had also served as trial counsel. Id. at 213. This Court held that the inmate had 

not pleaded sufficient facts to show that he was entitled to habeas corpus relief. Id. At 

the end of the opinion, in dicta, the Court stated that, if the inmate could prove that he 

had been abandoned, he "may wish to move to reopen his original motion under Rule 

29.15 in the sentencing court, provided that his original motion was timely filed." Id. at 

218. This statement cites no authority for such a motion and does not indicate that the 

Court considered the time limitations on such motions contained in this Court's rules. 

 

3

 The court of appeals recently handed down a case that demonstrates this danger. In Middleton 

v. State, No. WD75669 (Mo. App. Mar. 4, 2014), an inmate filed a "motion to reopen" his postconviction proceedings due to abandonment, which the circuit court overruled. He appealed, and 

the court of appeals affirmed in a published opinion. Middleton v. State, 200 S.W.3d 140 (Mo. 

App. 2006). Several years later, the inmate filed a second "motion to reopen," again claiming 

abandonment, which the circuit court again overruled. The inmate appealed, and the court of 

appeals again affirmed, but only after oral argument and a second written opinion. 

9
Later, in Taylor v. State, 254 S.W.3d 856, 857-58 (Mo. banc 2008), this Court 

stated that the "abandonment doctrine provides a narrow exception permitting the circuit 

court to re-open an otherwise final post-conviction case." The Court cited the Jaynes 

dicta as its only authority for this proposition. Id. at 858. The Court did not engage in 

any analysis regarding Rule 24.035(l)'s prohibition against successive motions. Nor did 

it examine why "abandonment" should be treated as an exception to any of this Court's 

rules when the requested remedy could be obtained through direct appeal. Moreover, the 

Court went on to find that Taylor had not been abandoned by his post-conviction counsel. 

Id. at 858. The Court's pronouncement that abandonment of post-conviction counsel 

serves as a "narrow exception" to the rule, therefore, was not necessary to the judgment 

and is not a "holding" of this Court. 

In Crenshaw v. State, 266 S.W.3d 257, 259 (Mo. banc 2008), decided shortly after 

Taylor, this Court likewise stated, "Under this Court's precedents, the motion court has 

authority to consider a motion to reopen [post-conviction] proceedings when it is alleged 

that a movant has been abandoned by his counsel." Crenshaw cited a court of appeals 

opinion, Edgington v. State, 189 S.W.3d 703 (Mo. App. 2006), to support that 

proposition. Edginton, in turn, cited the Jaynes dicta as authority. 189 S.W.3d at 706. 

The Court in Crenshaw did not engage in any analysis regarding what gives the motion 

court such authority. Moreover, Crenshaw did not grant the movant relief. 266 S.W.3d 

at 260-61. In fact, the Court in Crenshaw declined to examine whether abandonment had 

occurred. Id. at 260. 

10
In Gehrke v. State, 280 S.W.3d 54, 57 n.3 (Mo. banc 2009), the Court again, this 

time in a footnote, stated that the circuit court has the authority to consider a motion to 

reopen post-convictions proceedings when the movant alleges abandonment. Gerhke

cites Crenshaw, which, as noted, relies on a court of appeals opinion that cites Jaynes. 

Much like the other cases, Gehrke contains no analysis concerning the "exception" and 

holds that post-conviction counsel did not abandon the movant. Id. at 58-59. 

No case that the principal opinion or Vogl cites as authority to support the 

abandonment "exception" to the general rules concerning final judgments actually 

granted relief to the movant. And never has this Court analyzed the source of such 

"exception" or how that "exception" squares with Rule 24.035(l)'s prohibition against 

successive motions.4

 

 The rules of this Court do not provide for a "motion to reopen." Nor do they 

provide for a motion for post-conviction relief due to abandonment. Abandonment, as 

 

4 Significantly, no case from this Court decided before the errant Jaynes dicta addressed 

abandonment as part of a "motion to reopen" a post-conviction proceeding. Each pre-Jaynes

case addresses abandonment during the initial post-conviction proceeding or an appeal of the 

post-conviction motion's overruling without the notion of a "motion to reopen the proceeding." 

See Moore v. State, 934 S.W.2d 289 (Mo. banc 1996) (dealing with two cases in which 

abandonment was addressed at the motion court level prior to denying relief); State v. White, 873 

S.W.2d 590, 596-99 (Mo. banc 1994) (reviewing the motion court's determination during the 

Rule 29.15 proceeding that the movant was not abandoned), superseded on other grounds by rule 

as stated in Glover v. State, 225 S.W.3d 425 (Mo. banc 2007); McDaris v. State, 843 S.W.2d 

369, 371 (Mo. banc 1992) (reviewing a determination by the motion court that movant was not 

abandoned). 

These cases indicate that, before the Jaynes dicta, this Court understood the abandonment 

doctrine to apply only during the original post-conviction proceeding. No "motion to reopen" 

based on abandonment seems to have existed. This is particularly evident in Luleff, Sanders, and 

McDaris, each of which specifically stated that it was the initial motion court's responsibility to 

conduct an independent inquiry into whether abandonment occurred before ruling on the motion 

in the event of a late or non-filing of the amended motion or statement that no amended motion is 

necessary. 

11
judicially created, was to be examined prior to the circuit court's decision on the postconviction motion. The movant was free to argue that certain actions of counsel 

constituted abandonment during post-conviction proceedings or the direct appeal thereof. 

In my view, the cases relying on the Jaynes dicta are incorrectly decided in so far as they 

have suggested the use of a motion to reopen post-conviction proceedings, or any motion 

given another name alleging abandonment by appointed post-conviction counsel, without 

determining whether such a motion was a prohibited successive post-conviction motion.5

 The principal opinion states that the Rule 24.035(1) prohibition against successive 

motions does not apply to abandonment claims because Rule 24.035 does not establish 

the procedure for abandonment claims. I could accept that position if the principal 

opinion was willing to follow this Court's holding in McDaris which, pending a rule 

change, required abandonment claims to be made during the appeal of the postconviction motion. McDaris at 371-2. As stated previously, this Court has not adopted a 

rule providing for an alternative procedure to pursue abandonment claims. 

The truly myopic aspect of the "motion to reopen" due to abandonment of postconviction counsel is its complete disregard of the importance of finality of judgments. 

As mentioned, permitting these "motions to reopen" as some kind of exception to both 

Rule 75.01 and Rule 24.035(l) permits an endless cycle of relitigation of the same issue. 

This is exactly what these rules are designed to prevent. If "abandonment" somehow 

 

5

 It should be noted that untimely post-conviction motions due to what Price termed "third-party 

interference" or "active interference" do not run afoul of the prohibition against filing a 

successive motion. In those cases, no initial motion will have been filed; therefore, the movant 

needs to file a motion seeking to file the initial post-conviction motion out of time. See Price, 

422 S.W.3d at 295 n.1, 301-06. 

12
serves as an unlimited and unqualified exception to these rules, there is little to stop Vogl 

from filing another "motion to reopen" if he is ultimately unsuccessful on remand. If this 

Court does not follow its rules as written, there is no limit on the number of times a 

movant may allege abandonment in a "motion to reopen," and there is no limit on the 

timing of such a motion. 

 Additionally, the puzzling part about the principal opinion's decision to permit 

abandonment claims in a "motion to reopen" is that such a motion is completely 

unnecessary. Any colorable abandonment claim will be available to the movant in the 

initial motion court or on direct appeal because any successful claim of abandonment will 

be apparent from the record.6

 As noted, Price made clear that abandonment only occurs 

in two situations: 1) when appointed post-conviction counsel fails to file an amended 

motion or a statement why no motion is necessary or 2) when such a motion is necessary 

but is untimely filed by appointed counsel. 422 S.W.3d at 297-98. Either of these 

situations will be apparent from the face of the record in the initial motion court or on 

direct appeal of the initial post-conviction motion. 

 This is even true in Vogl's case. The principal opinion ultimately holds that postconviction counsel abandoned Vogl by failing to file an amended motion or statement in 

lieu thereof. There is absolutely no reason that Vogl could not have asserted this claim 

by following the normal procedures permitted by this Court's rules. Vogl could have 

filed a timely motion to vacate under Rule 75.01 or he could have filed an appeal. The 

 

6

 In fact, the principal opinion states that the motion court need only investigate abandonment 

"when the record raises" such a presumption and when "the record refutes the claim of 

abandonment" no such inquiry is required. Slip op. at 16-17 (emphasis added). 

13
failure to do so results from Vogl's own lack of diligence at the time his initial motion 

was dismissed. 

There is one additional concern with allowing unfettered "motions to reopen" a 

post-conviction proceeding. In my view, this Court should refuse to permit "motions to 

reopen" filed outside of the normal time limit to preserve potential relief under federal 

habeas corpus proceedings. In denying relief in Gehrke, this Court stated as follows: 

Federal habeas corpus proceedings require a movant to exhaust all available 

state remedies, including appeal and postconviction remedies, before 

bringing a federal claim. See Coleman v. Thompson, 501 U.S. 722, 731 

(1991). State court remedies are exhausted "when they are no longer 

available, regardless of the reason for their unavailability." Woodford v. 

Ngo, 548 U.S. 81, 92–93 (2006). If the scope of abandonment were 

expanded further, it is foreseeable that federal habeas corpus claims could 

be denied due to a movant's failure to bring a motion to reopen 

postconviction proceedings. This would frustrate the legitimate goals of a 

prompt comprehensive review and finality. 

Gehrke, 280 S.W.3d at 59. 

I understand that this result may appear unsympathetic because Vogl did not have 

counsel to guide him through the appeals process. However, as the record demonstrates, 

Vogl discovered all of his claims and prepared all of the motions leading to this third 

motion on his own, without counsel. The record also suggests that, on multiple 

occasions, Vogl reached out to his appointed post-conviction counsel, who answered 

several of Vogl's questions about filing this third motion. Furthermore, in postconviction proceedings, Rule 30.03 allows the movant to seek leave to file a notice of 

appeal out of time within 12 months of the judgment becoming final.7

 This gave Vogl a 

 

7

 Rule 30.03 provides: 

14
full year to collect all the information that is now the basis for his third Rule 24.035 

motion and seek leave to appeal.8

The Principal Opinion's Discussion of "Counsel's Failure to Ascertain" is 

Unnecessary 

 Had Vogl asserted his claim in a timely manner, he likely would have alleged 

sufficient facts that, if true, would have proven that he was abandoned by post-conviction 

counsel under this Court's recent definition of "abandonment" in Price v. State, 422 

S.W.3d 292 (Mo. banc 2014). This Court made clear in Price that "abandonment" by 

post-conviction counsel occurs only in one of two situations: 1) when appointed postconviction counsel fails to comply with Rule 24.035(e) by failing to file either an 

amended motion or a statement explaining why no amended motion is required or 

2) when appointed post-conviction counsel files an untimely amended motion. Id. at 

297-98. Vogl's third Rule 24.035 motion alleged sufficient facts that, if true, would 

prove that his post-conviction counsel failed to file either an amended motion or a 

 

Where the defendant or the state has the right of appeal including appeals from an 

order in a post-conviction proceeding involving a prior felony conviction, but 

notice of appeal is not filed with the clerk of the trial court within ten days after 

the judgment becomes final, the defendant or the state may file a notice of appeal 

in the trial court if, within twelve months after the judgment becomes final, a 

motion for leave to file such notice is filed in the appropriate appellate court and it 

thereafter sustains the motion and grants such leave. 

(Emphasis added).

8

 In addition to the rule allowing late appeals, Rule 74.06 permits a court to entertain motions 

seeking relief from a judgment or order. Among the reasons for relieving a party from a final 

judgment are that the judgment "is no longer equitable for the judgment to remain in force" and 

"excusable neglect." Rule 74.06(b)(1) and (5). Such motions must be made within a reasonable 

time and, for certain provisions, not more than one year. This rule has not been cited by any 

party, but it is permitted by this Court's rules. Even this available procedure would be preferred 

to ignoring this Court's clear and express rule prohibiting the filing of a successive Rule 24.035 

motion. 

15
statement explaining why no amended motion was required. Vogl alleges his postconviction counsel's only action was to file a motion to rescind his appointment as 

counsel on the ground that Vogl's initial motion was untimely. Counsel's motion to 

rescind appointment did not meet the basic requirements of Rule 24.035(e); therefore, 

Vogl's allegations, if proven, would constitute abandonment. 

 Despite the fact that this straightforward analysis resolves the issue, the principal 

opinion could be misconstrued to extend the abandonment doctrine into an evaluation of 

whether counsel met its "duty to ascertain" whether a movant has timely filed the pro se

motion required by Rule 24.035. This analysis is neither necessary for the principal 

opinion's resolution of this case, nor supported by this Court's precedent. 

 The opinion specifically holds, "Here, Mr. Vogl's appointed counsel failed to 

comply with Rule 24.035(e) because he did not file either an amended motion or a 

statement setting out facts demonstrating that counsel took actions to ensure why no 

amended motion was needed." This holding renders the principal opinion's discussion of 

the "duty to ascertain" unnecessary, and in my view, the discussion will lead to a 

resurgence of multiple "motions to reopen" or alternatively correctly titled "motions for 

relief due to abandonment" that are nothing more than re-characterized claims of 

ineffective assistance of post-conviction counsel.9

 

 

9 Moreover, Moore v. State, cited by the principal opinion as authority for the proposition that 

appointed post-conviction counsel's "failure to ascertain" all of the facts relevant to a movant's 

pro se motion, does not hold that such a failure actually amounts to abandonment. Rather, 

Moore stands for the rather unremarkable proposition that when the record shows on its face that 

counsel has failed to comply with the post-conviction rules, counsel will be presumed to have 

abandoned the movant. 934 S.W.2d 289, 292 (Mo. banc 1996). Moore remanded a case to the 

16
Res Judicata Prohibits Vogl's Second Abandonment Claim 

The principal opinion suggests that the res judicata issue is raised "sua sponte." 

The principal opinion notes that the State has not asserted that Vogl's prior motions 

constituted a "procedural bar" to the adjudication of his current motion. However, the 

"failure" to raise this issue at this point does not constitute a waiver of the issue. The 

post-conviction rules do not require a responsive pleading. Rule 24.035(g). In this case, 

the State did not file a responsive pleading because the circuit court swiftly denied relief 

without one, specifically pointing to its previous judgment overruling the original claim 

of abandonment. Therefore, the State has not "waived" any claim that Vogl was not 

abandoned, including that Vogl's claim is barred by res judicata due to his failure to 

perfect either his original post-conviction appeal or the appeal of his original 

abandonment claim. 

Res Judicata is an affirmative defense. Ordinarily, the party seeking to 

benefit by it must either plead in an answer, raise it by an amendment to the 

pleadings, or present it by motion to dismiss. However, it is a defense that 

not only benefits the defending party, but also benefits the court's ability to 

efficiently administer justice. 

In this regard, the United States Supreme Court has recognized: 

 

circuit court because counsel's statement why no amended motion was filed indicated that 

counsel had done nothing other than to file the statement. Id. Moore's holding stems from the 

fact that the Court determined that counsel essentially did nothing at all, not that counsel failed to 

ascertain facts that would have led to a colorable claim. Id. Counsel's failure to perform an 

adequate investigation is a matter of the effectiveness of counsel and, therefore, categorically 

unreviewable. This is perfectly demonstrated by the two cases that the principal opinion 

overrules, Stewart v. State, 261 S.W.3d 678 (Mo. App. 2008), and Morgan v. State, 8 S.W.3d 

151 (Mo. App. 1999). The movant in each case alleged that post-conviction counsel had 

abandoned him by failing to investigate the timeliness of the pro se motion. The court of appeals 

in each case held that such an allegation was better characterized as one for ineffective assistance 

of post-conviction counsel. 

17
"if a court is on notice that it has previously decided the issue 

presented, the court may dismiss the action sua sponte, even 

though the defense has not been raised. This result is fully 

consistent with the policies underling res judicata: it is not 

based solely on the defendant's interest in avoiding the 

burdens of twice defending a suit, but is also based on the 

avoidance of unnecessary judicial waste." 

Arizona v. California, 530 U.S. 392, 412 (2000). 

Patrick V. Koepke Const., Inc. v. Woodsage Const. Co., 119 S.W.3d 551, 555 (Mo. App. 

2003) (some internal citations omitted). Moreover, this Court has stated that, although 

res judicata is an affirmative defense, it need not be asserted in a responsive pleading 

because res judicata is in essence an allegation that the plaintiff has failed to state a claim 

upon which relief may be granted. Chesterfield Village, Inc. v. City of Chesterfield, 64 

S.W.3d 315, 318 n.1 (Mo. banc 2002). As such, res judicata may be raised in a motion 

to dismiss. Id. 

As pointed out in Koepke, while caution should be exercised in applying res 

judicata sua sponte, a well recognized exception to this caution exists when the defense 

arises out of the court's own earlier judgment. That is exactly what this Court is 

reviewing here—the motion court expressly referenced its previous judgment denying 

abandonment relief in its judgment denying relief on this motion. Under these facts, it is 

totally inappropriate for this Court to hold that ruling is "clearly erroneous." In my view, 

the judicially efficient resolution is to deny relief now rather than remand and require the 

State to file a motion to dismiss that the motion court will surely sustain. 

18
The principal opinion suggests that the Court should not review, sua sponte, the 

issue of res judicata because the "motion court dismissed Mr. Vogl's current 

abandonment claim as procedurally barred . . . Mr. Vogl's claim of abandonment has 

never been adjudicated on the merits." However, the motion court's 2011 order states 

that the circuit court would take no action on Vogl's claims of abandonment because 

Vogl failed to timely file his original motion. Or, in other words, because Vogl had not 

filed a timely original motion, the motion court determined that he could not have been 

abandoned by counsel. Moreover, any failure to obtain a final adjudication would stem 

from Vogl's own failure to appeal his initial motion and his failure to perfect his second 

appeal. To state that Vogl has not received a final adjudication of his abandonment claim 

is to: 1) ignore the language of the motion court's order; 2) ignore Vogl's multiple failures 

to pursue his abandonment claims through the procedures available to him; and 3) ignore 

the fact that, until the principal opinion overruled Stewart v. State and Morgan v. State 

today, Vogl's claims were considered claims of ineffective assistance of post-conviction 

counsel and not abandonment. 

As Judge Wilson's dissent points out, even assuming that the motion court's 2011 

order dismissed Vogl's abandonment claims "without prejudice," 

A dismissal without prejudice may operate to preclude the party from 

bringing another action for the same cause and may be res judicata of what 

the judgment actually decided. Mahoney v. Doerhoff Surgical Services, 807 

S.W.2d 503, 506 (Mo. banc 1991). An appeal from such a dismissal can be 

taken where the dismissal has the practical effect of terminating the 

litigation in the form cast or in the plaintiff's chosen forum. City of 

Chesterfield v. Deshetler Homes, 938 S.W.2d 671, 673 (Mo.App.1997). 

19
Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997); 

see also Naylor Senior Citizens Housing, LP v. Side Const. Co., 423 S.W.3d 238, 242-43 

(Mo. banc 2014). Clearly, both Vogl and the court of appeals believed that the circuit 

court's order terminated the litigation in 2011, as evidenced by Vogl's appeal from that 

order. Because the express terms of the order terminated the litigation so that Vogl 

would have a final judgment to appeal the motion court's ruling, the subsequent 

abandonment litigation is barred by res judicata. 

This Court has an obligation to ensure compliance with its post-conviction rules. 

Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012). In Dorris, this Court specifically 

held that the time limitations for the post-conviction rules cannot be waived by either 

party. 360 S.W.3d at 270. This Court held that the time limitations established by the 

rules for post-conviction relief were mandatory to preserve the finality of judgments and 

could not be waived. Id. In my view, this same conclusion applies to the post-conviction 

rules prohibiting successive motions. Because permitting successive motions frustrates 

the post-conviction relief system's need for finality, the State may not "waive" the rule 

violation, either inadvertently or purposefully. My view that this second abandonment 

claim is barred by res judicata is in accord with this Court's recent statement that parties 

cannot concede or stipulate to legal issues. State v. Hardin, 429 S.W.3d 417, 421 n.4 

(Mo. banc 2014) (stating that the State could not concede that the defendant had been 

subject to double jeopardy). 

 Lastly, "this Court will affirm on any ground that supports the circuit court's 

judgment, regardless of the grounds on which the circuit court relied." Stanley v. State, 

20
420 S.W.3d 532, 543 n.9 (Mo. banc 2014); see also Rizzo v. State, 189 S.W.3d 576, 578 

(Mo. banc 2006). While it could be argued that the precise grounds on which the motion 

court overruled this third motion are not clear, it appears that the motion court ruled, 

without the issue having been raised by the State, that its rulings on Vogl's prior motions 

prohibited the requested relief. In light of the docket entry and this Court's ability to 

affirm on any ground that supports the judgment, the determination that Vogl's current 

claim of abandonment is barred by res judicata should be addressed at this time. 

Conclusion 

 I disagree with the principal opinion's holding that the abandonment doctrine 

entitles Vogl to file a third Rule 24.035 motion. Vogl had a remedy available to him 

years ago when the motion court dismissed his initial motion. At that time, Vogl could 

have appealed the dismissal of his motion pursuant to Rule 24.035(k) or sought to vacate 

the judgment within the time period allowed by Rule 75.01. Because he failed to pursue 

these available remedies, Vogl is not entitled to relief now. Rule 24.035(l) specifically 

prohibits successive post-conviction relief motions. To grant Vogl a remand for a merits 

hearing on his allegations of abandonment, whether his motion is characterized as a 

"motion to reopen" or "motion for post-conviction relief due to abandonment" is to ignore 

the plain language of Rule 24.035(l). 

In McDaris, this Court stated that the motion court should examine abandonment 

prior to ruling on the motion by discussing the issue with post-conviction counsel and 

allowing the post-conviction movant to reply. McDaris stated that this procedure should 

stand until such time as this Court changed its rules. This Court has not changed its rules 

21
22

to permit a different procedure for determining abandonment claims despite its authority 

to do so. 

For the reasons stated above, I would affirm the judgment. I also concur in the 

opinion of Judge Wilson that res judicata bars Vogl from re-litigating his abandonment 

claim. 

 

 ___________________________ 

 Zel M. Fischer, Judge 
SUPREME COURT OF MISSOURI 

en banc 

MARK D. VOGL, ) 

 ) 

 Appellant, ) 

 ) 

v. ) No. SC93157 

 ) 

STATE OF MISSOURI, ) 

) 

Respondent. ) 

 DISSENTING OPINION 

The majority opinion holds that, when the counsel appointed to represent an 

inmate pursuant to Rule 24.035(e) does not file an amended motion or a statement 

explaining why no amended motion is necessary, the inmate either can object to such 

“abandonment” in the motion court and/or assert that claim on appeal as the inmates did 

in Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), and Sanders v. State, 807 S.W.2d 

493 (Mo. banc 1991), or the inmate can wait several years and then file a “motion for 

post-conviction relief due to abandonment.” Regardless of the merits of this holding, the 

Court is wrong to announce and apply it to Mr. Vogl in this case. 

As explained below, the 2012 motion that the majority opinion holds should have 

been granted by the trial court was Mr. Vogl’s second abandonment motion, not his first. 

His first abandonment motion is identical to the present one in all material respects 

except that it was filed in 2011, more than 14 months before the motion at issue in this 
case. The trial court denied Mr. Vogl’s first abandonment motion (just as it later denied 

the motion now before this Court), and Mr. Vogl appealed that first denial (just as he now 

appeals the second). But that is where the similarities end. Mr. Vogl never filed the 

record in his first appeal and, as a result, it was dismissed. Because Mr. Vogl already 

took the second chance to raise his abandonment claim that the majority opinion holds he 

should have, there is no need or reason to give him a third. Accordingly, I respectfully 

dissent. 

The majority opinion recites that Mr. Vogl’s initial post-conviction motion was 

denied as untimely on April 22, 2008, and he concedes that he did not ask the motion 

court to reconsider or vacate that decision under Rules 75.01 or 74.06. Mr. Vogl also 

made no effort to seek appellate review of this dismissal, either within 10 days after it 

became final (which, because Mr. Vogl made no motion for reconsideration, was 30 days 

after its entry) or anytime within the following year under Rule 30.03 (which allows the 

appellate court to grant leave for such a late filing “for good cause shown”). 

The majority opinion then recites that, in 2012, Mr. Vogl filed a motion alleging 

that he had been abandoned by his appointed counsel in 2008 and seeking to have the 

motion court hear and determine the merits of his Rule 24.035 claims that had been 

improperly dismissed as a result of that abandonment. Finally, the majority opinion 

recites that Mr. Vogl’s abandonment motion was denied on May 21, 2012, that he 

appealed this denial, and that his appeal is now before this Court pursuant to article V, 

section 10 of the Missouri Constitution. 

2
But, between 2008 (when his initial post-conviction motion was denied) and 2012 

(when he filed the abandonment motion that is now before this Court), there was another 

very important chapter to Mr. Vogl’s procedural story. On March 17, 2011, more than 

14 months before he filed the motion that is now before this Court, Mr. Vogl filed his 

first motion alleging that he had been abandoned by his appointed counsel in 2008 and 

seeking to have the motion court hear and determine the merits of his Rule 24.035 claims 

that were improperly dismissed as a result of that abandonment.1

 

Attached to this first abandonment motion are the same exhibits that the majority 

opinion analyzes from his second motion: (a) the 2010 correspondence between Mr. Vogl 

and the Jasper County circuit clerk’s office; (b) the letter and motion from appointed 

counsel requesting the motion court to rescind appointment because Mr. Vogl’s initial 

pro se motion was filed too late under Rule 24.035; and (c) the motion court’s 2008 order 

rescinding counsel’s appointment and dismissing Mr. Vogl’s motion for post-conviction 

relief as untimely. Mr. Vogl alleges in his first abandonment motion, as he does in his 

second, that his pro se Rule 24.035 motion was not untimely in 2008, that his appointed 

counsel’s concession on this issue was “without proper merit,” and that this abandonment 

by appointed counsel deprived him of meaningful review of the claims he had raised in 

his 2008 motion for post-conviction relief. 

 

1

 Mr. Vogl includes a copy of his first abandonment motion in his legal file for this case, as well 

as the correspondence from the appellate division of the Public Defender System (which did not 

represent Mr. Vogl at the time) stating it had reviewed his motion and recommending he file it.

3
The motion court denied Mr. Vogl’s first abandonment motion on November 4, 

2011, just as it later would deny his second abandonment motion six months later.2

 

Mr. Vogl appealed this November 4 denial to the Missouri Court of Appeals, Southern 

District, where his appeal was assigned Case No. 31797. Four months later, however, 

Mr. Vogl had not filed his record on appeal. Pursuant to Rule 84.08, therefore, the 

appellate court warned Mr. Vogl that his appeal would be dismissed unless he filed the 

required documents or demonstrated good cause why dismissal should not be ordered. 

He did neither, and Mr. Vogl’s appeal from the trial court’s denial of his first 

abandonment motion was dismissed. 

Rule 24.035(l) plainly states: “The circuit court shall not entertain successive 

motions.” Even if the majority opinion is correct that this language does not prohibit an 

inmate from filing a “motion for post-conviction relief due to abandonment” after having 

previously filed (and been denied) a motion for post-conviction relief, there is nothing in 

the language of Rule 24.035(l) that justifies allowing an inmate to file a second “motion 

for post-conviction relief due to abandonment” when he has previously filed (and been 

denied) a first “motion for post-conviction relief due to abandonment.” 

 

2

 The majority opinion insists that the “motion court dismissed Mr. Vogl’s current [second] 

abandonment claim as procedurally barred on the ground that his Rule 24.035 action was 

dismissed with prejudice for the untimely filing of his original pro se motion and Mr. Vogl’s 

claim of abandonment never has been adjudicated on the merits[.]” Maj. Op. at 4, n.4. That is a 

fair reading of the motion court’s order denying Mr. Vogl’s first abandonment motion on 

November 4, 2011, but it is not a fair reading of the motion court’s ruling denying the second 

abandonment motion, i.e., the denial at issue here. Here, the motion court explicitly notes that it 

denied a previous motion from Mr. Vogl on the same ground seeking the same relief. 

4
If Mr. Vogl had managed to file the record in his appeal from the 2011 denial of 

his first abandonment motion (as he managed to do in this case and as pro se inmates 

manage to do in hundreds of post-conviction appeals every year), all that has occurred in 

this appeal could have – and perhaps would have – occurred in that one. But he did not 

do so, and that appeal was dismissed. No matter how compelling the issues he might 

have raised then would have been, and no matter how wrong the trial court may have 

been in denying Mr. Vogl’s first abandonment motion in 2011 under the majority 

opinion’s reasoning here, there simply is no justification for ignoring the fact that 

Mr. Vogl did not file his second abandonment motion (the denial of which is now before 

the Court) until after he failed to perfect his appeal from the denial of his first 

abandonment motion.3

Even assuming that the majority opinion is correct that Mr. Vogl had a right to 

assert an abandonment claim years after failing to assert that claim in the motion and 

 

3

 The majority opinion suggests that the dismissal of Mr. Vogl’s first abandonment motion has 

no preclusive effect because it was not decided “on the merits.” The trial court denied both 

motions on the same grounds (and, as to Mr. Vogl’s second abandonment motion, on the 

additional ground that the court had denied relief to Vogl regarding abandonment in his first 

motion). The majority opinion offers no reason why the second denial is appealable but the first 

denial was not. A dismissal has preclusive effect on any issue it decides, and it is this preclusive 

effect that makes the dismissal appealable. Chromalloy Am. Corp. v. Elyria Foundry Co., 955 

S.W.2d 1, 3 (Mo. banc 1997). Accordingly, either: (a) the denial of Vogl’s first abandonment 

motion was preclusive on the question of whether abandonment can be asserted years after the 

post-conviction motion was denied and, because it was preclusive on this point, the dismissal 

was appealable (as the court of appeals plainly concluded it was); or (b) the denial of Mr. Vogl’s 

first abandonment motion was not preclusive on that issue and, because it was not preclusive, it 

was not appealable. The majority opinion does not choose (b) because, under that approach, the 

denial of Vogl’s second motion also cannot be appealed. On the other hand, if the answer is (a) 

and the denial of an abandonment motion is appealable – which the majority opinion plainly 

holds it is – then all of the arguments raised and adopted here could have been raised and 

adopted in Mr. Vogl’s appeal from the denial of his first abandonment motion. The fact that he 

failed to pursue that appeal does not mean it did not happen. 

5
6

appellate courts in 2008 (or 2009), Mr. Vogl exercised that right in 2011 when he filed 

his first abandonment motion. It may well have been error for the motion court to deny 

Mr. Vogl’s first abandonment motion just as the majority opinion concludes it was error 

to deny his second; but we will never know. Mr. Vogl’s failure to perfect his appeal from 

the denial of his first motion waived all claims of error regarding that denial. He cannot 

simply ignore the disposition of his first abandonment motion in the hopes of relitigating 

the same issues now in a second motion. Accordingly, the Court is wrong to reach the 

issues it resolves in this case, and I respectfully dissent from its having done so.4

 

 

 

 

________________________________ 

 Paul C. Wilson, Judge 

 

4

 The majority opinion chides the author for raising this issue sua sponte, noting that the state 

did not raise the preclusive effect of Mr. Vogl’s first abandonment motion below. It is difficult 

to see how the state could have raised this issue when it was under no obligation to file a 

responsive pleading to Mr. Vogl’s second abandonment motion and, as a practical matter, had no 

opportunity to raise that issue (or anything else) before the trial court denied the motion. 

Presumably, it will do so on remand. There is no need to put the parties through this exercise, 

however, as this Court repeatedly has held that “motion courts and appellate courts have a ‘duty 

to enforce the mandatory time limits and the resulting complete waiver in the postconviction 

rules – even if the State does not raise the issue.’” Price v. State, 422 S.W.3d 292, 297 (Mo. 

banc 2014) (quoting Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012)). There is no reason 

this “duty” also should not extend to “enforcing” the clear prohibition against successive postconviction motions found in Rules 24.035(l) and 29.15(l). To say that this prohibition does not 

extend to successive post-conviction motions based on abandonment because nothing in Rules 

24.035 and 29.15 recognizes post-conviction motions based on abandonment simply proves too 

much.