Atteberry v. Mo. Bd. of Probation & Parole, WD 65986.
| Court | Court of Appeal of Missouri (US) |
| Citation | 193 S.W.3d 444 |
| Docket Number | No. WD 65986.,WD 65986. |
| Parties | James ATTEBERRY, Appellant, v. MISSOURI BOARD OF PROBATION AND PAROLE and Missouri Department of Corrections, Respondents. |
| Decision Date | 13 June 2006 |
James Atteberry, Cameron, MO, appellant Pro Se.
Andrew W. Hassell, Jefferson City, MO, for respondents.
Before VICTOR C. HOWARD, Presiding Judge, JOSEPH M. ELLIS, Judge, and LISA WHITE HARDWICK, Judge.
James Atteberry appeals from the denial of his petition for writ of mandamus, filed in the Circuit Court of Cole County, in which he requested that the circuit court order Respondents, the Missouri Department of Probation and Parole and the Missouri Department of Corrections, to correct their records to reflect that he did not have a prior prison commitment under § 559.115. In denying Appellant's petition, the circuit court held that his claim was moot because he had already served forty percent of his sentence.
Appellant is serving a four-year term in the Missouri Department of Corrections for driving while intoxicated concurrently with another three-year term for driving while intoxicated. On May 5, 2005, Appellant filed a pro se petition for writ of mandamus in the circuit court asking that Respondents be ordered to correct their records to reflect that he had no prior remands to the department of corrections. Appellant claimed that "Respondents' refusal to remove [Appellant]'s prior 120-day prison commitment will result in irreparable harm by requiring him to serve a mandatory minimum of 40% on his current three and four year concurrent sentences rather than 0% with a properly calculated zero prior prison commitments."
Respondents subsequently filed a motion to dismiss Appellant's petition as moot, contending that, as of May 14, 2005, Appellant had already served forty percent of his sentence, the mandatory minimum for a prior offender. Respondents argued that any ruling by the circuit court would, therefore, have no consequence. On August 17, 2005, the court issued its Order and Judgment denying Appellant's writ petition as moot.
In his sole point on appeal, Appellant contends that the circuit court erred in determining that his claim was moot. Appellant argues that his completion of forty percent of his sentence does not render his claim moot because he wanted the inaccurate calculation corrected in his records, the inaccurate calculation was contrary to the law, and because that prior determination could have continuing collateral consequences in the future.
Before addressing Appellant's claims on appeal, we must consider Respondents' motion to dismiss this appeal. Respondents contend that this Court lacks jurisdiction to consider an appeal from the circuit court's denial of Appellant's writ motion.
"[T]he law is firmly established that no right of appeal lies from the circuit court's denial of a petition for an extraordinary writ outright." Merrell v. Director of Revenue, 82 S.W.3d 227, 230 (Mo.App. W.D. 2002). "When a circuit court denies a preliminary writ of mandamus, appeal is not proper; instead, the petitioner must file the writ in a higher court." Delay v. Missouri Bd. of Prob. & Parole, 174 S.W.3d 662, 664 (Mo.App. W.D.2005). "By contrast, where a preliminary writ is granted and the court then determines on the merits whether the writ should be made permanent, or quashed, then appeal is the proper remedy." Wheat v. Missouri Bd. of Prob. & Parole, 932 S.W.2d 835, 838 (Mo.App. W.D.1996). "`Where the court below dismisses the petition following answer or motion directed to the merits of the controversy and in doing so determines a question of fact or law' we will also treat the order as final and appealable." Id. (quoting State ex rel. Schaefer v. Cleveland, 847 S.W.2d 867, 870 (Mo.App. E.D. 1992))....
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State Ex rel. Praxair, Inc. v. Pub. Serv. Com'n of the State of Mo., s. WD 71988, WD 71989.
...rendered, would not have any practical effect upon any then existing controversy.' " Id. (quoting Atteberry v. Mo. Bd. of Prob. & Parole, 193 S.W.3d 444, 446 (Mo.App. W.D.2006)). Here, Empire argues that because subsequent tariffs have been approved and implemented by the Commission since t......
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Henry v. Farmers Ins. Co., WD 76953.
...effectual relief by the court impossible, the case is moot and generally should be dismissed.” Atteberry v. Mo. Bd. of Prob. & Parole, 193 S.W.3d 444, 446 (Mo.App.2006) (internal quotation marks and citations omitted).444 S.W.3d 478 Reviewing Appellants' petition, the only specific relief t......
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State Of Mo. Ex Rel. Praxair Inc v. Pub. Serv. Comm'n Of The State Of Mo., WD71988
...rendered, would not have any practical effect upon any then existing controversy.'" Id. (quoting Atteberry v. Mo. Bd. of Prob. & Parole, 193 S.W.3d 444, 446 (Mo. App. W.D. 2006)). Here, Empire argues that because subsequent tariffs have been approved and implemented by the Commission since ......
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State ex rel. Ashby Road Partners, LLC. v. State Tax Com'n, SC 89529.
...order, the petitioning party then must file its writ petition in the next higher court. Atteberry v. Mo. Bd. of Prob. & Parole, 193 S.W.3d 444, 445 (Mo.App.2006). If the court, however, "is of the opinion that the preliminary order in prohibition should be granted, such order shall be issue......