Mercer v. State

Paul C. Wilson, Judge,

dissenting

I respectfully dissent. The docket entry denying Mercer’s motion for DNA testing under section 547.035 is not a “final judgment” or otherwise appealable under section 512.020 or any other statute. Accordingly, this Court should dismiss Mercer’s appeal and allow him to request the trial court to enter an appealable final judgment.

“In Missouri, the right to appeal is purely statutory, and ‘where a statute does not give a right to appeal, no right exists.’” Fannie Mae v. Truong, 361 S.W.3d 400, 403 (Mo. banc 2012) (quoting Farinella v. Croft, 922 S.W.2d 755, 756 (Mo. banc 1996)). Because nothing in sections 547.035 or 547.037 grants a special right of appeal when a circuit court denies a motion for .DNA testing under section 547.035, Mercer must look to the general appeals statute in section 512.020 for such a right. Section 512.020(5) grants a right of appeal to any party aggrieved by the “final judgment in the case.” For purposes of this statute, a “judgment” is an order that disposes of at least one of the claims in a lawsuit, and a “final judgment” is an order that disposes of all (or all remaining) claims in the lawsuit. Wells Fargo Bank, N.A. v. Smith, 392 S.W.3d 446, 452 (Mo. banc 2013); Buemi v, Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011).

To be sure, Mercer was aggrieved by the April 21, 2014, docket entry denying his section 547.035 motion for DNA testing. But that is not enough. Even though the docket entry was an order,1 it' was not in the form of a “judgment” as required by this Court’s rules. Under Rule 74.01, a “judgment is entered when a writing signed by the judge and denominated ‘judgment’ or ‘decree’ is filed.” The April 21 docket entry fails to meet this definition because it is not signed by the judge and was not denominated a “judgment.”2

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.

City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997) (emphasis added).

Because there was never an appealable “final judgment” in this case, this Court must dismiss Mercer’s appeal on that ba*758sis.3 Then, Mercer can petition the circuit court to sign and enter an order (properly denominated as a “judgment”) denying his section 547.035 claim, which will allow Mercer to avail himself of the appellate review to which both the majority opinion — and I — believe he is entitled.4

. Under Rule 74.02, “[e]veiy direction of a court made or entered in writing and not included in a judgment is an order.” Here, the April 21, 2014, docket entry meets this definition of “order” because it is a direction by the trial court that Mercer's section 547.035 motion for DNA testing be overruled.

, The majority opinion would ignore the requirements of Rule 74.01(a) by relying on State v. Reber, 976 S.W.2d 450; 451 (Mo. banc 1998), which holds that an order denying a post-conviction motion under Rules 24.035 or 29.15 is appealable regardless of the signature and denomination requirements in Rule 74.01(a). But this Court steadfastly has refused to allow the Reber "exception” to swallow the Rule 74.01(a) “rule,” noting that “to make clear that [Rules 24.035 and 29.15] provide an exception to the general rule that an order is not appealable, both of these rules specifically provide that ‘[a]n order sustaining or overruling a motion filed under the provisions of this [Rule] shall be deemed a final judgment for purposes of appeal by the mov-ant or the state,’ ” Sanford v. CenturyTel of Mo., 490 S.W.3d 717, 722 (Mo. banc 2016) (emphasis added). Because there was "no such provision for appeals of interlocutory orders [which are] subject to interlocutory appeal by statute,” the Court in Sanford was obligated to dismiss the appeal. Id.'

. Mercer suggests that Spicer v. Donald N. Spicer Revocable Living Trust, 336 S.W.3d 466, 471 (Mo. banc 2011), and other decisions of this Court analyzing the question of whether there was an appealable "final judgment” in terms of the appellate court’s jurisdiction, are invalid in light of J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. banc 2009). But, because Wyciskalla dealt with the jurisdiction of the circuit courts rather than the more limited appellate jurisdiction of this Court and the court of appeals, Wyciskalla is not inconsistent with Spicer or other similar decisions. In any event, whether such questions are analyzed in terms of "jurisdiction” or simply "authority,” it is clear — both before and after Wyciskalla — that an appellate court must dismiss any appeal that is not authorized by statute. See Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc 2012) ("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.”) (citation omitted).

. In that event, the trial court would have another opportunity to comply with section 547.035.8, which requires the trial court to "issue findings of fact and conclusions of law whether or not a hearing is held.” Should the trial court neglect to do so, Mercer may then request that the trial court correct this error under Rule 78.07(c) and, by makjng such a request, preserve the issue for appeal should the trial court fail to comply.