McKay v. State, 520 S.W.3d 782

Background

McKay was convicted in 2012 of drug and firearms offenses and appealed, raising a speedy-trial claim among others.
The court of appeals remanded for an evidentiary hearing on the speedy-trial claim but said the case was "affirmed in part and remanded in part." The first mandate reflected that language.
Believing the judgment mostly affirmed, McKay filed a pro se post-conviction motion as to the non-speedy-trial claims; the motion court ruled on it and later denied relief; the court of appeals affirmed that denial.
Separately, the trial court held the remand hearing on the speedy-trial claim, denied relief, and the court of appeals later affirmed that denial and issued a second mandate affirming the conviction in full.
Fifteen days after the second mandate, McKay filed a second post-conviction motion asserting ineffective assistance regarding the speedy-trial matter; the motion court dismissed it as "successive."
The Missouri Supreme Court held the initial pro se motion was premature (filed before a final mandate), so the later timely motion was not successive; the dismissal was vacated and the court instructed treatment of both filings as one motion and permitted an amended motion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether McKay's second post-conviction motion was "successive"	McKay: the second motion was timely and not successive because the first pro se motion was premature; the speedy-trial issue was still pending on remand and could not have been raised earlier	State: the second motion repeated claims and therefore was successive and barred by the rules limiting successive motions	Held: The second motion was not successive; the first motion was premature and the second should be treated as a timely supplement to it
Whether a pro se post-conviction motion filed before a final mandate starts the filing period	McKay: a motion filed before a final mandate is premature and should be held until the mandate issues; it should not trigger waiver or bar a later timely filing	State: premature filing does not change that only one collateral attack is allowed; dismissal as successive was appropriate	Held: A motion filed before the appellate mandate affirming the entire judgment is premature; it should be held and considered filed when the time to file arises
Whether an appellate court may "affirm in part" when remanding on an issue that could vacate the whole conviction	McKay: appellate language caused confusion; an "affirm in part" when remand may lead to vacation is improper	State: appellate disposition stands as written	Held: An appellate court should not treat the judgment as "affirmed in part" when the remanded issue could result in vacatur; it should hold the appeal or issue a single mandate after remand
Remedy: appropriate treatment of prematurely-filed claims and prior rulings	McKay: prior rulings on premature motion should be vacated and claims allowed in a single amended motion	State: prior adjudications were final and should preclude re-litigation	Held: Rulings entered on the premature motion are vacated to the extent they precluded consideration after final mandate; motion court must allow counsel to file one amended motion addressing all claims

Key Cases Cited

Dorris v. State, 360 S.W.3d 260 (Mo. banc 2012) (post-conviction relief is a collateral attack on a final judgment)
Smith v. State, 21 S.W.3d 830 (Mo. banc 2000) (successive post-conviction motions raising claims available earlier are barred)
Futrell v. State, 667 S.W.2d 404 (Mo. banc 1984) (claims available at first motion constitute successive claims if raised later)
Gehrke v. State, 280 S.W.3d 54 (Mo. banc 2009) (standard of review for findings dismissing motions as successive)
Woods v. State, 53 S.W.3d 587 (Mo. App. 2001) (premature Rule 29.15 motions should be held pending issuance of the mandate)
State v. McKay, 411 S.W.3d 295 (Mo. App. 2013) (appellate opinion remanding for evidentiary hearing on speedy-trial claim)