Section 26.33 Failure to File Motion as Ineffective Assistance of Counsel

• Library: Criminal Practice 2012 Supp

P. (§26.33) Failure to File Motion as Ineffective Assistance of Counsel

When the defendant desires to file a motion for new trial and trial counsel either fails or refuses to do so, this inaction will normally constitute ineffective assistance of counsel. Nicholson v. State, 524 S.W.2d 106, 111 (Mo. banc 1975). Counsel’s failure to file a timely motion for new trial may similarly constitute ineffective assistance. State v. Batek, 638 S.W.2d 809, 811–12 (Mo. App. E.D. 1982); Barkwell v. State, 619 S.W.2d 511, 512 (Mo. App. S.D. 1981). When counsel thus fails to file a motion for new trial, the appropriate remedy is a remand to the trial court to vacate the judgment and sentence to permit the defendant to file a motion for new trial to be deemed timely. Nicholson, 524 S.W.2d at 111–12.

When a motion for new trial is untimely filed and the appellate court finds that the untimeliness was because of counsel’s negligence, the court will examine the issues raised in the tardily filed motion to determine...