Hubert v. Purkett

• Decision Date: 30 June 2005
• Docket Number: No. ED 85996.,ED 85996.
• Citation: 165 S.W.3d 585
• Parties: Dewayne HUBERT, Appellant, v. James PURKETT, Superintendent of Eastern Reception Diagnostic and Correctional Center, Respondent.
• Court: Missouri Supreme Court

165 S.W.3d 585

Dewayne HUBERT, Appellant, v. James PURKETT, Superintendent of Eastern Reception Diagnostic and Correctional Center, Respondent.

No. ED 85996.

Missouri Court of Appeals, Eastern District, Division Five.

June 30, 2005.

Appeal from the Circuit Court of St. Francois County, James H. Kelly, Judge.

Dewayne Hubert, Bonne Terre, MO, pro se.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stephen D. Hawke, Jefferson City, MO, for respondent.

GEORGE W. DRAPER III, C.J.

Dewayne Hubert (Appellant) appeals from a judgment denying his petition for writ of habeas corpus. The appeal is dismissed.

Appellant filed a petition for a writ of habeas corpus in the circuit court. The petition was denied and Appellant has appealed to this Court. In response, the State has filed a motion to dismiss the appeal, contending this Court has no jurisdiction of the appeal. Appellant has not filed a response to the motion.

Here, Appellant seeks to appeal from the circuit court's judgment denying his petition for writ of habeas corpus. An appeal does not lie from the denial of a petition for habeas corpus. Blackmon v. Missouri Board of Probation and Parole, 97 S.W.3d 458 (Mo. banc 2003); McDermott v. State, 120 S.W.3d 261, 262 (Mo. App. E.D.2003). If we lack jurisdiction to entertain an appeal, then it should be dismissed. Fischer v. City of Washington, 55 S.W.3d 372, 377 (Mo.App. E.D.2001).

A petitioner's remedy where a petition for writ of habeas corpus is denied is to file a new writ petition in a higher court. Webster v. Purkett, 110 S.W.3d 832, 837 (Mo.App. E.D.2003). Appellant has not filed a new writ petition.

The appeal is dismissed for lack of an appealable judgment.

LAWRENCE G. CRAHAN, J. and GLENN A. NORTON, J., concur.