Mercer v. State
| Decision Date | 29 December 2015 |
| Docket Number | No. SD33779,SD33779 |
| Parties | RICHARD SCOTT MERCER, Movant-Appellant, v. STATE OF MISSOURI, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY
APPEAL DISMISSED
Richard Scott Mercer (Movant) was convicted of second-degree statutory rape and incest for events that occurred in February 2007. In October 2013, Movant filed a motion seeking forensic DNA testing pursuant to § 547.035.1 No evidentiary hearing was held on the motion. An April 21, 2014 docket entry stated: This docket entry was neither signed by the judge nor denominated as a judgment, and the court issued no findings of fact or conclusions of law. Movant hasattempted to appeal from the motion court's docket entry. We dismiss the appeal for lack of a final judgment.
As noted, Movant's motion was brought pursuant to § 547.035. The procedure to be followed in adjudicating such a motion "is governed by the rules of civil procedure insofar as applicable." § 547.035.1. This statute also requires the court to "issue findings of fact and conclusions of law whether or not a hearing is held." § 547.035.8. In relevant part, § 547.037 states that "[a]n appeal may be taken from the court's findings and conclusions as in other civil cases." § 547.037.6. Very similar statutory language in § 536.140.6 has been interpreted to provide a right of appeal pursuant to § 512.020.2 Subject to exceptions inapplicable here, § 512.020 permits an aggrieved party in a civil case to appeal from "the final judgment in the case." § 512.020(5).
In Ndegwa v. KSSO, LLC, 371 S.W.3d 798 (Mo. banc 2012), our Supreme Court stated:
Prior to reaching the merit of the issues set forth in this case, this Court must determine, sua sponte, if there is a final judgment. A final judgment is a prerequisite to appellate review. If the circuit court's judgment was not a final judgment, then the appeal must be dismissed.
Id. at 801 (internal citations omitted); see also Buemi v. Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011); Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997); City of St. Louis v. Hughes, 950 S.W.2d 850, 852 (Mo. banc 1997).
Neither party to this appeal has questioned whether the motion court's docket entry ruling is a final judgment that is appealable pursuant to § 512.020(5). Thedissenting opinion argues that this Court need not dismiss this appeal sua sponte because Gibson and Hughes relied upon a jurisdictional rationale that is no longer valid in light of J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009). See Gibson, 952 S.W.2d at 244; Hughes, 950 S.W.2d at 852. We disagree.
J.C.W. dealt with trial court jurisdiction. We question its applicability in determining whether jurisdictional or prudential principles limit an appellate court's ability to address the merits of an appeal. Post-J.C.W. cases from our Supreme Court continue to recognize that an appellate court must determine whether it has jurisdiction before deciding an appeal. See, e.g., Fannie Mae v. Truong, 361 S.W.3d 400, 403 (Mo. banc 2012) (it is incumbent on the Supreme Court to examine its jurisdiction sua sponte); Spicer v. Donald N. Spicer Revocable Living Trust, 336 S.W.3d 466, 468 (Mo. banc 2011) (in all appeals, the Supreme Court is required to examine its jurisdiction sua sponte).3 Post-J.C.W. cases from our Supreme Court also continue to recognize prudential limitations on an appellate court's authority to reach the merits of an appeal. See, e.g., Missouri Mun. League v. State, 465 S.W.3d 904, 906 (Mo. banc 2015) (an appellate court is obligated to examine, sua sponte, an appeal for mootness because that threshold issue to appellate review implicates the justiciability of a controversy); CACH, LLC v. Askew, 358 S.W.3d 58, 61 (Mo. banc 2012) (an appellate court has a duty to determine if a party has standing prior to addressing the substantive issues of the case,and standing cannot be waived). As the opinion in J.C.W. wryly noted, "the admirable trait of judicial self-restraint ... can be exercised, one hastens to add, without getting all jurisdictional about it." J.C.W., 275 S.W.3d at 251.
Neither Ndegwa nor Buemi explicitly state whether the prerequisite requirement of a final judgment is based upon jurisdictional or prudential concerns. See Ndegwa, 371 S.W.3d at 801; Buemi, 359 S.W.3d at 20. Regardless of the underlying rationale, our Supreme Court continues to apply the rule that an appellate court must dismiss an appeal sua sponte for lack of a final judgment. As our Supreme Court noted in McNeal v. McNeal-Sydnor, 472 S.W.3d 194 (Mo. banc 2015):
The circuit court initially entered an order dismissing Mr. McNeal's petition. Mr. McNeal filed his notice of appeal directly with this Court. This Court issued an order to Mr. McNeal ordering him to show cause as to why his appeal should not be dismissed for lack of a final judgment. The circuit court then entered an amended judgment of dismissal.
Id. at 194-95. It makes no practical difference because this Court is constitutionally bound to follow the last controlling decision of our Supreme Court. MO. CONST. art. V, § 2; State v. Spencer, 307 S.W.3d 203, 205 (Mo. App. 2010). Therefore, we must dismiss this appeal unless we decide that the motion court's docket entry constitutes a final judgment.
In making that decision, we are required to read § 512.020(5) in conjunction with Rule 74.01(a). See Spiece v. Garland, 197 S.W.3d 594, 595-96 (Mo. banc 2006); Hughes, 950 S.W.2d at 852-53. Rule 74.01(a) states:
(a) Included Matters. "Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated "judgment" or "decree" is filed. The judgment may be a separate document or entry on the docket sheet of the case. A docket sheet entry complying with these requirements is a judgment unless thedocket sheet entry indicates that the court will enter the judgment in a separate document. The separate document shall be the judgment when entered.
The provisions of Rule 74.01(a) define and clarify what constitutes a judgment. Hughes, 950 S.W.2d at 853. Pursuant to rulemaking authority granted by art. V, § 5 of the Missouri Constitution, our Supreme Court revised this subpart of the rule for the following reason:
The requirement that a trial court must "denominate" its final ruling as a "judgment" is not a mere formality. It establishes a "bright line" test as to when a writing is a judgment. The rule is an attempt to assist the litigants and the appellate courts by clearly distinguishing between when orders and rulings of the trial court are intended to be final and appealable and when the trial court seeks to retain jurisdiction over the issue.
Hughes, 950 S.W.2d at 853; see also Dunivan v. State, 466 S.W.3d 514, 517-18 (Mo. banc 2015) (reaffirming this principle and citing Hughes as support). Thus, a decree or order is not appealable pursuant to § 512.020 until a writing, signed by the judge and denominated as a judgment or decree, is filed. See Rule 74.01(a); Spiece, 197 S.W.3d at 595-96.
The only remaining issue is whether Rule 74.01(a) applies to this civil post-conviction proceeding which "is governed by the rules of civil procedure insofar as applicable." § 547.035.1. To make that decision, the essential inquiry is whether Rule 74.01(a) conflicts with, enhances or is neutral to the purposes of § 547.035. See Atchison v. State, 420 S.W.3d 559, 561 (Mo. App. 2013); In re C.A.D., 995 S.W.2d 21, 27 (Mo. App. 1999). If the rule enhances those purposes or is of neutral consequence, it applies. Atchison, 420 S.W.3d at 561. In our view, the denomination and signature requirements in Rule 74.01(a) enhance the purpose of § 547.035 and must be applied.
First, application of Rule 74.01(a) provides a bright-line test for appellate courts and litigants to know when a § 547.035 ruling is appealable.4 Denomination and signature by the motion court demonstrates that it has fully adjudicated the matter.
Second, § 547.035.8 requires a motion court to issue findings of fact and conclusions of law. That did not occur below. The application of the Rule 74.01 assists appellate courts and litigants in determining when a Rule 78.07(c) motion to amend the judgment must be filed in order to be timely and helps avoid an inadvertent waiver of the statutory requirement for findings of fact and conclusions of law.5
Because the motion court's docket entry was neither signed by the judge nor denominated as a judgment or decree as required by Rule 74.01(a), the docket entry is not a final judgment that is appealable pursuant to § 512.020(5). Accordingly, the appeal is dismissed for lack of a final judgment. See Ndegwa, 371 S.W.3d at 802; Buemi, 359 S.W.3d at 25.
IN PRINCIPAL OPINION AND BY SEPARATE OPINION
IN PRINCIPAL OPINION, CONCURS IN SEPARATE CONCURRING OPINION OF J. SCOTT AND CONCURS BY SEPARATE OPINION
I credit the dissent for formally proving, as seemed to follow from J.C.W.,6 that this Rule 74.01(a) violation does not rob us of appellate jurisdiction.
Still, with exceptions inapplicable here, controlling authority requires that we "determine, sua sponte, if there is a final judgment," which "is a prerequisite to appellate review." Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc 2012). I agree that Rule 74.01(a) applies to this case, which means the docket entry was not a final judgment. "If the circuit court's judgment was not a final judgment, then the appeal must...
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