DocketNumber: No. ED 106194
Citation Numbers: 561 S.W.3d 492
Judges: Dowd
Filed Date: 11/20/2018
Status: Precedential
Modified Date: 1/21/2022
Pervis McAllister appeals the denial without an evidentiary hearing of his Rule 29.15
Discussion
A final judgment is a prerequisite for appeal. Green v. State ,
In disposing of claims in a Rule 29.15 motion, the motion court is required to issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is granted. Rule 29.15(j). Such findings and conclusions constitute a final judgment for purposes of appeal. Rule 29.15(k). Accordingly, a judgment denying post-convict ion relief is not final and appealable if it fails to "acknowledge, adjudicate, or dispose" of all the claims asserted in a post-conviction motion. Creighton v. State ,
Here, the motion court failed to issue findings of fact and conclusions of law on McAllister's four claims of ineffective assistance of appellate counsel from his amended motion. Indeed, the court failed even to mention those claims anywhere in its judgment. While the court purported to address separate claims of ineffective assistance of appellate counsel that McAllister raised in his pro se motion, those claims were entirely different from the four claims of ineffective assistance of appellate counsel that McAllister raised in his amended motion, the denial of which he now appeals. The claims from the amended motion were based on alleged failures to challenge the sufficiency of the evidence to support three of McAllister's convictions and to object to jury instructions based on asserted violations of double-jeopardy principles. McAllister had never raised these claims before. McAllister's claims of ineffective assistance of appellate counsel from his pro se motion, however, faulted appellate counsel solely for failing to object to the State's opening statement; inadmissible hearsay testimony; and evidence of uncharged crimes.
*494In light of these facts, we find that the motion court clearly failed to acknowledge, adjudicate, or dispose of the four claims from McAllister's amended motion of ineffective assistance of appellate counsel. Consequently, we conclude-in accordance with Rules 74.01(b) and 29.15(j) and the Missouri Supreme Court's holding in Green -that the court's judgment in this case is not final and McAllister's appeal must be dismissed.
Conclusion
For the reasons stated above, we dismiss this appeal for lack of a final judgment, so that the motion court may enter findings and conclusions adjudicating all of McAllister's post-conviction claims.
Sherri B. Sullivan, P.J., and Lawrence E. Mooney, J., concur.
All rules references are to the Missouri Supreme Court Rules (2017).