Fleming v. Rowley

Missouri Court of Appeals

Fleming v. Rowley

148 S.W.3d 855, 2004 Mo. App. LEXIS 1612, 2004 WL 2382652

CourtMissouri Court of Appeals

DecidedOctober 26, 2004

DocketED 84943

StatusPublished

Cited by2 cases

This text of 148 S.W.3d 855 (Fleming v. Rowley) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fleming v. Rowley, 148 S.W.3d 855, 2004 Mo. App. LEXIS 1612, 2004 WL 2382652 (Mo. Ct. App. 2004).

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Opinion

GEORGE W. DRAPER III, C.J.

William Fleming (Appellant) appeals from a judgment dismissing his petition for writ of habeas corpus.

We are obligated in every case to determine whether we have jurisdiction and 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). Here, Appellant seeks to appeal from the judgment dismissing his petition for writ of habeas corpus in the circuit court. An appeal does not lie from the denial or dismissal of a petition for habeas corpus. McDermott v. State, 120 S.W.3d 261, 262 (Mo.App. E.D.2003). A petitioner’s remedy where a petition for writ of habeas corpus is dismissed is to file a new petition in a higher court. Webster v. Purkett, 110 S.W.3d 832, 837 (Mo.App. E.D.2003).

We issued an order directing Appellant to show cause why his appeal should not be dismissed. Appellant filed a response, but offers no argument regarding the lack of jurisdiction. Instead, he argues the merits of his case. Without jurisdiction, this Court cannot address the merits.

The appeal is dismissed for lack of an appealable judgment.

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

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GEORGE W. DRAPER III, C.J.

William Fleming (Appellant) appeals from a judgment dismissing his petition for writ of habeas corpus.

We are obligated in every case to determine whether we have jurisdiction and 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). Here, Appellant seeks to appeal from the judgment dismissing his petition for writ of habeas corpus in the circuit court. An appeal does not lie from the denial or dismissal of a petition for habeas corpus. McDermott v. State, 120 S.W.3d 261, 262 (Mo.App. E.D.2003). A petitioner’s remedy where a petition for writ of habeas corpus is dismissed is to file a new petition in a higher court. Webster v. Purkett, 110 S.W.3d 832, 837 (Mo.App. E.D.2003).

We issued an order directing Appellant to show cause why his appeal should not be dismissed. Appellant filed a response, but offers no argument regarding the lack of jurisdiction. Instead, he argues the merits of his case. Without jurisdiction, this Court cannot address the merits.

The appeal is dismissed for lack of an appealable judgment.

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

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Bluebook (online)

148 S.W.3d 855, 2004 Mo. App. LEXIS 1612, 2004 WL 2382652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleming-v-rowley-moctapp-2004.

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