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). Unlike an original motion, which the movant is responsible for pleading and filing, an amended motion is a final pleading, which requires legal expertise.
Evidence in the record suggests that the clerk's office actually received Stewart's original pro se motion October 1, 2001, in which case it would have been timely. See Phelps v. State, 21 S.W.3d 832 (Mo.App. E.D. 1999) (motion for post-conviction relief was timely when it was actually received by court clerk's office before deadline, even though motion was stamped as received after deadline). Despite Stewart's insistence and the availability of postal records indicating that the motion was delivered on time, appointed counsel failed to investigate and instead simply requested leave to file out of time.
A Rule 29.15 motion is filed "when it is received by the proper officer and lodged in his office." (citation omitted) Phelps v. State of Missouri, 21 S.W.3d 832, 833 (Mo.App.E.D. 1999); Jones v. State, 24 S.W.3d 701, 703 (Mo.App.E.D. 1999). The date the Clerk's office actually receives the document, as evidenced by the file stamp, is crucial in determining timeliness.
Filing occurs when a document is delivered to the proper officer and lodged in his office. Goodson v. State, 978 S.W.2d 363, 364 (Mo.App.E.D. 1998); Euge v. Golden, 551 S.W.2d 928, 931 (Mo.App. 1977);Lewis v. State, 845 S.W.2d 137, 138 (Mo.App.W.D. 1993) (Rule 24.035 motion for post-conviction relief is considered filed when deposited with the circuit court clerk and lodged in the clerk's office); Phelps v. State, 21 S.W.3d 832, 833 (Mo.App.E.D. 1999); Goodson v. State, 978 S.W.2d 363, 364 (Mo.App.E.D. 1998). Further, the date of receipt is crucial to determining timeliness of the filing.