State v. Buckner

566 S.W.3d 261
CourtMissouri Court of Appeals
DecidedDecember 26, 2018
DocketWD 81030
StatusPublished
Cited by1 cases

This text of 566 S.W.3d 261 (State v. Buckner) 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
State v. Buckner, 566 S.W.3d 261 (Mo. Ct. App. 2018).

Opinion

Lisa White Hardwick, Judge

After Earnest Buckner's appointed counsel voluntarily dismissed without prejudice his pro se post-conviction motion for DNA testing, Buckner filed a motion setting out his objections to the dismissal, a request for new appointed counsel, a motion for release from custody, and a request for a status update on his case. Noting that the case had been voluntarily dismissed without prejudice, the court entered an order stating that the case was closed and denying all of Buckner's motions and requests. On appeal, Buckner *263contends the court erred in closing the case and denying all of his motions and requests. Because there is no final appealable judgment in this case, we dismiss Buckner's appeal.

FACTUAL AND PROCEDURAL HISTORY

In 1993, Buckner was convicted of forcible sodomy and sentenced to thirty years in prison. We affirmed his conviction and sentences on direct appeal in State v. Buckner , 929 S.W.2d 795 (Mo. App. 1996). In the same opinion, we reversed the circuit court's grant of post-conviction relief. Id.

In March 2015, Buckner filed a post-conviction motion for DNA testing1 pursuant to Section 547.035, RSMo 2016.2 Section 547.035 allows a person in the custody of the Department of Corrections who claims that DNA testing will demonstrate his innocence to file a post-conviction motion seeking such testing. In his motion and suggestions, Buckner alleged that there was "saliva evidence" that could be tested because the victim reported that her assailant had orally sodomized her. Buckner requested DNA testing of the covering on the couch where the oral sodomy occurred, the swab of the victim's vaginal area, and the long underwear and underpants that the victim wore after the incident. Buckner alleged that the police collected these items, the prosecutor's office received the items from the police, neither he nor his attorney knew about the items, and DNA testing on the items would exonerate him.

In October 2015, the motion court found that Buckner's motion was substantially in compliance with Section 547.035 and ordered the State to show cause why the motion should not be granted. In November 2015, counsel from the Midwest Innocence Project entered their appearance on Buckner's behalf.

The State filed a response asserting that it had searched all available records electronically and physically and found that there was no evidence to be tested. The State averred that there were no reports to substantiate Buckner's claim that a rape kit was collected or that there was other physical evidence that could be DNA tested.

In September 2016, defense counsel filed a reply to the prosecutor's response. In her reply, defense counsel claimed that a letter from Buckner to the General Counsel for the Kansas City Police Department indicated that there was a "master file" in Buckner's case. Defense counsel stated that Buckner learned about the existence of the physical evidence from documents in the "master file." Defense counsel alleged that Buckner had hired an organization to review his case and to investigate the evidence, but the organization did not provide any services, and he was unable to get his documents from the "master file" back from the organization. Defense counsel stated that her review of Buckner's trial file provided no information on the "previously undisclosed evidence."

In November 2016, the motion court set the case for an evidentiary hearing on December 20, 2016. On December 8, 2016, however, defense counsel filed a voluntary *264dismissal without prejudice of Buckner's post-conviction motion for DNA testing.

On December 19, 2016, Buckner filed a pleading titled, "Defendant's Objections to Court Appointed Counsel's Motion to Voluntarily Dismiss his 547.035 Motion, Proceeding, and Evidentiary Hearing with Request for a Hearing under Rule 75.01." In this pleading, Buckner complained about defense counsel's voluntarily dismissing his case without prejudice against his wishes. He asked that the court grant him: (1) time to reply to his counsel's voluntarily dismissing his case; (2) a hearing under Rule 75.01; and (3) new counsel. Along with his objections, Buckner filed a separate request for new appointed counsel, a motion for release from custody, and a request for a status update on his case.

On June 20, 2017, the motion court issued an "Order/Judgment" taking up all of Buckner's pending motions and requests. The court found that the last issue pending in Buckner's case was voluntarily dismissed on December 8, 2016. Therefore, the court found that the case was closed and ordered that all of Buckner's motions and requests be denied.

Buckner subsequently filed a request for reconsideration of all pro se motions and requests in his case and a motion to denominate the June 20, 2017 order as an appealable judgment. The motion court issued an order denying the motion for reconsideration and stating that its order from June 20, 2017 was denominated an "Order/Judgment." Buckner appeals.

ANALYSIS

Buckner raises five points on appeal. In Points I and III, he challenges the denial, without a hearing, of his objections to defense counsel's voluntarily dismissing his post-conviction motion for DNA testing. In Point II, he challenges the denial of his motion for new appointed counsel. In Point IV, Buckner alleges the court erred in closing his post-conviction motion for DNA testing without issuing findings of fact and conclusions of law. Lastly, in Point V, he alleges the court erred in denying his motion for release from custody.

Before we can reach the merits of Buckner's claims, we must address our authority to entertain the appeal. State v. Wright , 499 S.W.3d 361, 366 (Mo. App. 2016). "Barring statutory exception, an appeal can only be taken from a final judgment." Id. (citation omitted). Section 512.020(5) prescribes who may appeal and states, in relevant part:

Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his or her appeal to a court having appellate jurisdiction from any ... [f]inal judgment in the case or from any special order after final judgment in the cause[.]

A final judgment is "a writing signed by the judge and denominated 'judgment' or 'decree,' " Rule 74.01(a), and it " 'resolves all issues in a case, leaving nothing for future determination.' " Basta v. Kansas City Power & Light Co. , 410 S.W.3d 743

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Cite This Page — Counsel Stack

Bluebook (online)
566 S.W.3d 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-buckner-moctapp-2018.