Whitehorn v. State

Missouri Court of Appeals

Whitehorn v. State

217 S.W.3d 371, 2007 Mo. App. LEXIS 503, 2007 WL 896166

CourtMissouri Court of Appeals

DecidedMarch 27, 2007

DocketNo. WD 65343

StatusPublished

This text of 217 S.W.3d 371 (Whitehorn v. State) 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

Whitehorn v. State, 217 S.W.3d 371, 2007 Mo. App. LEXIS 503, 2007 WL 896166 (Mo. Ct. App. 2007).

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Opinion

RONALD R. HOLLIGER, Judge.

Eric Whitehorn (“Whitehorn”) pro se appeals the denial after evidentiary hearing of his Rule 29.15 post-conviction motion alleging that he received ineffective assistance of counsel in his trial for second degree murder and armed criminal action. He contends that the motion court erred in failing to make findings on the claims included in his original pro se motion in addition to the findings and conclusions of law on the claims raised by appointed counsel in an amended motion. In his second point, he argues that the trial court clearly erred in finding that his waiver of a jury trial in the original criminal proceeding was made voluntarily, intelligently, and knowingly. In his third point, he contends that the motion court erred in denying him the right to proceed pro se on his Rule 29.15 motion.

Because the motion court struck the amended petition before the hearing, the only motion before the court was White-[372]*372horn’s original pro se motion.¹ The motion court did not rule upon all of the claims contained in that motion and refused to hear evidence² except on the claims that were repeated in the amended petition. The judgment of the motion court is not final because it does not dispose of all of the issues before it and is not final for purposes of appeal. We, therefore, lack jurisdiction and must dismiss the appeal. Geiler v. State, 921 S.W.2d 74, 75, 76 (Mo.App. E.D.1996). Because we lack jurisdiction, we also cannot consider the other issues raised on appeal except that the trial court will have the opportunity to reconsider Whitehorris request to proceed pro se if he so indicates after remand.

The appeal is dismissed and remanded for further proceedings.

JOSEPH M. ELLIS, Presiding Judge, and ROBERT G. ULRICH, Judge, concur.

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RONALD R. HOLLIGER, Judge.

Eric Whitehorn (“Whitehorn”) pro se appeals the denial after evidentiary hearing of his Rule 29.15 post-conviction motion alleging that he received ineffective assistance of counsel in his trial for second degree murder and armed criminal action. He contends that the motion court erred in failing to make findings on the claims included in his original pro se motion in addition to the findings and conclusions of law on the claims raised by appointed counsel in an amended motion. In his second point, he argues that the trial court clearly erred in finding that his waiver of a jury trial in the original criminal proceeding was made voluntarily, intelligently, and knowingly. In his third point, he contends that the motion court erred in denying him the right to proceed pro se on his Rule 29.15 motion.

Because the motion court struck the amended petition before the hearing, the only motion before the court was White-[372]*372horn’s original pro se motion.¹ The motion court did not rule upon all of the claims contained in that motion and refused to hear evidence² except on the claims that were repeated in the amended petition. The judgment of the motion court is not final because it does not dispose of all of the issues before it and is not final for purposes of appeal. We, therefore, lack jurisdiction and must dismiss the appeal. Geiler v. State, 921 S.W.2d 74, 75, 76 (Mo.App. E.D.1996). Because we lack jurisdiction, we also cannot consider the other issues raised on appeal except that the trial court will have the opportunity to reconsider Whitehorris request to proceed pro se if he so indicates after remand.

The appeal is dismissed and remanded for further proceedings.

JOSEPH M. ELLIS, Presiding Judge, and ROBERT G. ULRICH, Judge, concur.

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Bluebook (online)

217 S.W.3d 371, 2007 Mo. App. LEXIS 503, 2007 WL 896166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitehorn-v-state-moctapp-2007.

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