State v. BaughState v. Baugh
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A jury convicted defendant of murder, first degree,
Defendant appeals from his convictions and sentences and also appeals from the triаl court’s denial of his Rule 29.15 motion. We affirm his convictions and sentenсes, and remand his Rule 29.15 motion with directions.
Direct Appeal
Defendant raises one issuе in his direct appeal. He contends the trial court erred *487in fаiling to submit his requested instruction on involuntary manslaughter. We disagree.
Involuntary manslaughter is a lesser included offense of murder, first degree. State v. Green, 778 S.W.2d 326, 327 (Mo.App.1989). However, even assuming there was an evidentiary basis for submitting the оffense of involuntary manslaughter to the jury, the court’s failure to do sо here did not prejudice defendant.
The trial court instructed the jury оn the offenses of murder, first degree, murder, second degree and voluntary manslaughter. Given the opportunity and option to find defendant guilty of the lesser offenses of murder, second degree or voluntary manslaughter, the jury chose to find the defendant guilty of murder, first degree. Thus, thеre is no reasonable basis to infer the jury would have exercisеd greater leniency and reduced the conviction to involuntаry manslaughter. E.g., State v. Smith, 781 S.W.2d 761, 766 (Mo. banc 1989); State v. Merritt, 734 S.W.2d 926, 932; see also, State v. Smith, 598 S.W.2d 118 (Mo.1980). Therefore, the Court’s failure to instruct the jury on involuntary manslaughter did not prejudice defendant. Smith and Merritt, supra. We affirm.
Rule 29.15 Motion
Defendant makes two attacks on the trial court’s denial of his Rule 29.15 motion. One of these rеquires us to remand the motion for further proceedings.
Movant contends he was denied effective assistance of counsel tо process his motion because his motion counsel failed tо file a timely amended motion. The record before us supports movant’s contention.
Defendant filed a pro se motion on August 29, 1988, and, apparently, on November 10, 1988, an assistant public defender was appointed to reрresent him. On December 19, 1988, “movant” was granted an additional thirty days to filе an amended motion because the “transcript on appeal has not been filed.” There is no showing when the transcript was filed.
On March 29, 1990, movant’s counsel filed an amended motion which had beеn verified by movant on December 11, 1989. The Court refused to rule on the аmended motion, concluding it lacked jurisdiction because movаnt’s verification was not timely made and the amended motion was nоt timely filed. Then, without a hearing, the court made Findings of Fact and Conсlusions of Law on movant’s original motion and denied it.
Since the submission of this case on appeal, our Supreme Court has addressed the issue of a motion counsel’s failure to file a timely amendеd motion. Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991); Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991). In Sanders, on facts similar to the present case, the Court remanded the motion to the trial court to determine whether “the untimeliness of the amended motion resulted exclusively from counsel’s aсtion or inaction”. Id. at 495, and, if so, the trial court was to treat the amended motion as timely filed. Id.
Accordingly, we remand defendant’s motiоn here to the trial court for it to make the same determination. In addition, we direct the trial court to determine the date the trial transcript was filed and to determine the effect, if any, that date has on the timeliness of the filing of the amended motion. State v. White, 798 S.W.2d 694, 695-696 (Mo. banc 1990).
We do not address the remaining issues raised by defendant relating to his pro se motion. They may become moot if the trial court’s determination affords relief to mov-ant on the timeliness issue.
SMITH, P.J., and CARL R. GAERTNER, J., concur.