RICHARD SCOTT MERCER,                      )
                                           )
       Movant-Appellant,                   )
                                           )
v.                                         )              No. SD33779
                                           )              Filed: December 29, 2015
STATE OF MISSOURI,                         )
                                           )
       Respondent-Respondent.              )

            APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY

                       Honorable Kelly W. Parker, Circuit Judge

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:       “Cause called.

Movant’s Post Conviction Motions Seeking Forensic DNA Testing overruled and

denied.” 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 has

       1
         All statutory references are to RSMo Cum. Supp. (2006), and all rule references
are to Missouri Court Rules (2015).


                                           1
attempted 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).            The
          2
           See, e.g., Missouri Health Facilities Review Comm. v. Admin. Hearing
Comm’n of Missouri, 700 S.W.2d 445, 449 (Mo. banc 1985); Underwood v. St. Joseph
Bd. of Zoning Adjustment, 368 S.W.3d 204, 209 (Mo. App. 2012); Taylor v. Civil Serv.
Comm’n of St. Louis Cty., Mo., 969 S.W.2d 763, 764 (Mo. App. 1998); McDowell v.
City of Springfield, 906 S.W.2d 908, 909 (Mo. App. 1995).


                                               2
dissenting 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,


       3
          In Truong, our Supreme Court held that an appeal lacking a statutory basis
confers no authority upon an appellate court except to dismiss the appeal. Truong, 361
S.W.3d at 405. The Supreme Court’s statement that it had to examine its jurisdiction sua
sponte suggests the result would have been the same even if the respondent had not raised
the issue. Id. at 403. In Spicer, our Supreme Court held that the absence of a timely
notice of appeal deprives an appellate court of jurisdiction and requires the dismissal of
the appeal. Spicer, 336 S.W.3d at 471-72.


                                            3
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 the



                                             4
       docket 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.




                                            5
       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.



JEFFREY W. BATES, J. – OPINION AUTHOR

WILLIAM W. FRANCIS, JR., J. – CONCURS

MARY W. SHEFFIELD, C.J. – CONCURS


       4
          An order sustaining or overruling a Rule 29.15 or Rule 24.035 motion is
expressly “deemed a final judgment for purposes of appeal by the movant or the state.”
Rule 29.15(k); Rule 24.035(k). As a result, it is not necessary that the order be
denominated a “judgment” in order to be appealable. Jendro v. State, 453 S.W.3d 333,
337 (Mo. App. 2014). There is no similar language in § 547.035 or § 547.037.
       5
           Rule 78.07(c) requires that “[i]n all cases, allegations of error relating to the
form or language of the judgment, including the failure to make statutorily required
findings, must be raised in a motion to amend the judgment in order to be preserved for
appellate review.” Id. Rule 78.04 requires such a motion to be filed not later than 30
days after the entry of judgment.



                                             6
DANIEL E. SCOTT, J. – CONCURS IN PRINCIPAL OPINION AND BY SEPARATE

OPINION

DON E. BURRELL, J. – CONCURS IN PRINCIPAL OPINION, CONCURS IN

SEPARATE CONCURRING OPINION OF J. SCOTT AND CONCURS BY

SEPARATE OPINION

NANCY STEFFEN RAHMEYER, J. – DISSENTS BY SEPARATE OPINION

GARY W. LYNCH, J. – CONCURS IN DISSENTING OPINION




                                7
RICHARD SCOTT MERCER,                       )
                                            )
        Movant-Appellant,                   )
                                            )
v.                                          )         No. SD33779
                                            )
STATE OF MISSOURI,                          )
                                            )
        Respondent-Respondent.              )

                             CONCURRING OPINION

        I credit the dissent for formally proving, as seemed to follow from J.C.W.,1

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 be dismissed.” Ndegwa, 371 S.W.3d at 801.




1
    J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009).
         In Hughes,2 our supreme court explained why. Faced with problems, the

court determined in 1995 to create

           a “bright line” test as to when a writing is a judgment…. [in] 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.

950 S.W.2d at 853. The result was amended Rule 74.01(a), id., and a requirement

that appellate courts check for compliance and dismiss appeals for noncompliance.

Ndegwa, 371 S.W.3d at 801. Respect for that policy decision and our high court’s

authority to make it, more than slavish adherence to stare decisis, demands that we

stay the course until that court, not this one, decides to change direction.

DANIEL E. SCOTT, J. – SEPARATE OPINION AUTHOR




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

                                            2
                                                                                      

RICHARD SCOTT MERCER,                              )
                                                   )
        Movant-Appellant,                          )
                                                   )
vs.                                                )                   No. SD33779
                                                   )
STATE OF MISSOURI,                                 )                   Filed: December 29, 2015
                                                   )
        Respondent-Respondent.                     )


                                        CONCURRING OPINION

        I concur in the principal opinion and in the separate opinion of Judge Scott. I also find much to

admire in the dissenting opinion, and if our high court had written Hughes1 after it wrote J.C.W.,2 I doubt

that the concluding word of the analysis in Hughes would have been “jurisdiction.”3 Nonetheless, the

question of appellate court “jurisdiction” was not at issue in J.C.W., and Hughes has not been explicitly

overruled. As a result, I also cannot join the dissent for the reasons stated by our supreme court in State v.

Honeycutt, 421 S.W.3d 410, 422 (Mo. banc 2013):

                  Generally, this Court presumes, absent a contrary showing, that an opinion of this
        Court has not been overruled sub silentio. See Badahman v. Catering St. Louis, 395
        S.W.3d 29, 37 n. 10 (Mo. banc 2013). Sub silentio is defined as “without notice being
        taken or without making a particular point of the matter in question.” Webster's Third
        New International Dictionary 2279 (1976). “If the majority chooses to overrule [a case]
        it is far preferable to do so by the front door of reason rather than the amorphous back
        door of sub silentio.” Keller v. Marion Cty. Ambulance Distr., 820 S.W.2d 301, 308
        (Mo. banc 1991) (Holstein, J., dissenting). This presumption can be traced, at least in

1
  City of St. Louis v. Hughes, 950 S.W.2d 850 (Mo. banc 1997).
2
  J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009).
3
  950 S.W.2d at 853.
     part, to the doctrine of stare decisis. “The doctrine of stare decisis—to adhere to decided
     cases—promotes stability in the law by encouraging courts to adhere to precedents.”
     Med. Shoppe Int'l, Inc. v. Dir. of Revenue, 156 S.W.3d 333, 334–35 (Mo. banc 2005).
     Under the doctrine of stare decisis, decisions of this Court should not be lightly
     overruled, especially when “the opinion has remained unchanged for many years.” Sw.
     Bell Yellow Pages, Inc. v. Dir. Of Revenue, 94 S.W.3d 388, 391 (Mo. banc 2002).

              Importantly, “[t]he maxim of stare decisis applies only to decisions on points
     arising and decided in causes” and does not extend to mere implications from issues
     actually decided. Broadwater v. Wabash R. Co., 212 Mo. 437, 110 S.W. 1084, 1086
     (1908). To assert that a decision has been overruled sub silentio is the same as to assert
     that the decision has been overruled by implication. This Court's presumption against
     sub silentio holdings, therefore, is based not only on the general preference that precedent
     be adhered to and decisions be expressly overruled, but also because the implicit nature
     of a sub silentio holding has no stare decisis effect and is not binding on future decisions
     of this Court.

DON E. BURRELL, J. – SEPARATE OPINION AUTHOR




                                                  2
RICHARD SCOTT MERCER,                                   )
                                                        )
           Movant-Appellant,                            )
                                                        )
vs.                                                     )        No. SD33779
                                                        )
STATE OF MISSOURI,                                      )        Filed: December 29, 2015
                                                        )
           Respondent-Respondent.                       )

                      APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY

                                   Honorable Kelly W. Parker, Circuit Judge

DISSENT

           I must respectfully dissent from the dismissal of the appeal. First, I note that a very

narrow issue is presented to us. The trial court here entered a docket entry denying the motion

for DNA testing. This docket entry does not comply with the requirements of Rule 74.01(a)1 to

be signed by the judge and designated as a “judgment” and, thus, cannot be considered to be a




1
    All rule references are to Missouri Court Rules (2015).
judgment as defined by that rule.2 The parties, however, have not raised any issue whether Rule

74.01 applies or requested any relief for non-compliance with that rule or section 512.020.

Therefore, our only interest is whether non-compliance with Rule 74.01(a), and, thus, section

512.020, deprives us of appellate jurisdiction to review this appeal. While I agree with the

majority opinion that we have a duty to determine our “jurisdiction,” based upon the analysis

employed by our Supreme Court in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo.

banc 2009), decided after City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997), I

believe that this Court does have jurisdiction to determine the appeal. I believe the omission of

the judge’s signature and failure to denominate the order as a “judgment,” are simply errors that

this Court may address, but is not required to address unless raised by the parties, in deciding the

appeal.

                                    JURISDICTION ANALYSIS

          To commence, then, “this Court, sua sponte, must determine its own jurisdiction of this

appeal.” Comm. for Educ. Equal. v. State, 878 S.W.2d 446, 450 (Mo. banc 1994). “To do

otherwise is to erode the very foundation of the rule of law.” Id. The application of this

foundational principle is not in dispute.

          Section 547.035, under which this motion was brought, provides that “[t]he procedure to

be followed for such motions is governed by the rules of civil procedure insofar as applicable.”
2
  The majority opinion also faults the motion court’s docket entry for omitting findings of facts and conclusions of
law as required by section 547.035.8. It fails, however, to provide any analysis as to whether, and if so how, this
omission either countermands our constitutionally granted appellate jurisdiction to hear this appeal, see infra, or
undermines the existence of a final judgment, see, e.g., Green v. State, No. SD33574, 2015 WL 5892915 (Mo.App.
S.D. October 8, 2015), cause ordered transferred on December 22, 2015 (appeal dismissed for lack of a final
judgment because motion court did not enter rule-required findings of fact and conclusions of law on all asserted
claims). The “inadvertent waiver of the statutory requirement for findings of fact and conclusions of law” concern
mentioned in the majority opinion is easily addressed by an appellant simply pursuing the entry of a final judgment,
as contemplated by court rules and section 512.020, before filing his or her notice of appeal. Here, Movant chose to
invoke our constitutionally granted appellate jurisdiction, see infra, when he filed his notice of appeal. If Movant’s
choice was premature and thereby substantially impaired or limited his chances of success on appeal, any efforts on
our part to sua sponte save him from his own folly in doing so thrusts us into the role of his advocate rather than an
impartial decision maker as required by our role in maintaining the rule of law.


                                                          2
Section 547.035.1. Section 512.020 gives a statutory right to appeal to “[a]ny party to a suit

aggrieved by any judgment of any trial court in any civil cause[.]” Section 512.020 (emphasis

added). Rule 74.01(a) states, in part, “[a] judgment is entered when a writing signed by the

judge and denominated ‘judgment’. . . is filed.” Because the docket entry here does not meet the

Rule 74.01 requirements to be considered a judgment, there is no section 512.020 statutory right

to appeal it. These legal errors, however, even though once considered an integral part of our

required jurisdictional analysis in every case, do not deprive us of our constitutionally-granted

jurisdiction to hear this appeal.

        A review of the cases establishing the “jurisdiction” analysis is helpful. In Hughes, our

Supreme Court established a “bright line” test to determine when a writing is a judgment from

which an appeal lies. That determination was whether the order was “denominated” a judgment,

as required by Rule 74.01(a). Hughes, 950 S.W.2d at 853. In Hughes, the central premise of

the opinion was that the right of appeal is statutory, with the applicable statutory provisions to be

section 512.020. Id. at 852. Section 512.020, RSMo. Cum.Supp. 2004, now provides:

                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:
        (1) Order granting a new trial;
        (2) Order refusing to revoke, modify, or change an interlocutory order appointing
        a receiver or receivers, or dissolving an injunction;
        (3) Order granting or denying class action certification provided that:
        (a) The court of appeals, in its discretion, permits such an appeal; and
        (b) An appeal of such an order shall not stay proceedings in the court unless the
        judge or the court of appeals so orders;
        (4) Interlocutory judgments in actions of partition which determine the rights of
        the parties; or
        (5) Final judgment in the case or from any special order after final judgment in
        the cause; but a failure to appeal from any action or decision of the court before
        final judgment shall not prejudice the right of the party so failing to have the
        action of the trial court reviewed on an appeal taken from the final judgment in
        the case.



                                                  3
“Absent one of the exceptions expressly set out in [section 512.020], ‘a prerequisite to appellate

review is that there be a final judgment.’” Hughes, 950 S.W.2d at 852.

            The Hughes court noted, “If the order of the trial court was not a final judgment, this

Court lacks jurisdiction and the appeal must be dismissed.” Id. (emphasis added). The Hughes

court further stated that “[t]he legislature has defined a ‘judgment’ as ‘the final determination of

the right of the parties in an action.’” Id. at 853. The Court reasoned, “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.” Id. (emphasis added). Holding that “we are without

jurisdiction[,]” the Hughes court dismissed the appeal. Id.

            After Hughes, however, our Supreme Court decided “to bring down to earth and

clarify the meaning of the magical word ‘jurisdiction’”3 J.C.W., 275 S.W.3d at 251. Initially,

the Court explained that subject matter jurisdiction of the circuit court is governed by the

Missouri Constitution. Id. at 252.

            Missouri courts recognize two kinds of jurisdiction: subject matter jurisdiction
            and personal jurisdiction. These two kinds of jurisdiction—and there are only two
            for the circuit courts—are based upon constitutional principles. Personal

3
    Judge Wolff described the magical qualities of “jurisdiction” as follows:

            The word has magic because it can make judgments disappear, as in: “The judgment is a nullity
            because the court lacked jurisdiction.” The word has magic because it makes judges fearful of
            entering the Land of No Jurisdiction. A lawyer, accordingly, employs the magic word in hopes of
            curbing the judicial beast from entering the Land of No Jurisdiction, where the defense of the case
            might be devoured on its merits. In other cases, perhaps, judges likewise may use the magical
            word to display the admirable trait of judicial self-restraint in order to avoid deciding the merits.
            (This admirable trait can be exercised, one hastens to add, without getting all jurisdictional about
            it.) A word with such magic would seem, of course, to be irresistible to those who would seek
            legislation to block the courthouse door to litigants of unpopular character and claims of
            disfavored origin.
                      To call a concept “jurisdictional” is to elevate its importance. The problem with a word
            with such magic is, sadly, that it will be over used, as it is in cases such as the present case.

J.C.W., 275 S.W.3d at 251-52.


                                                             4
        jurisdiction is, for the most part, a matter of federal constitutional law.[] Subject
        matter jurisdiction is governed by article V of the Missouri Constitution.

Id.

        “[T]he subject matter jurisdiction of Missouri’s courts is governed directly by the

[S]tate’s constitution.” Id. at 253. The Court held:

        Article V, section 14 sets forth the subject matter jurisdiction of Missouri’s circuit
        courts in plenary terms, providing that ‘[t]he circuit courts shall have original
        jurisdiction over all cases and matters, civil and criminal. Such courts may issue
        and determine original remedial writs and shall sit at times and places within the
        circuit as determined by the circuit court.

Id. at 253-54 (emphasis added in J.C.W.). Our Supreme Court eschewed the notion that a statute

could impinge upon this constitutional grant of jurisdiction by stating:

        Elevating statutory restrictions to matters of “jurisdictional competence” erodes
        the constitutional boundary established by article V of the Missouri Constitution,
        as well as the separation of powers doctrine, and robs the concept of subject
        matter jurisdiction of the clarity that the constitution provides. If “jurisdictional
        competence” is recognized as a distinct concept under which a statute can restrict
        subject matter jurisdiction, the term creates a temptation for litigants to label
        every statutory restriction on claims for relief as a matter of jurisdictional
        competence. Accordingly, having fully considered the potential ill effects of
        recognizing a separate jurisdictional basis called jurisdictional competence, the
        courts of this state should confine their discussions of circuit court jurisdiction to
        constitutionally recognized doctrines of personal and subject matter jurisdiction;
        there is no third category of jurisdiction called “jurisdictional competence.”

Id. at 254.

        Like subject matter jurisdiction of the circuit courts, as addressed in J.C.W., appellate

jurisdiction of Missouri’s appellate courts is governed directly by the State’s constitution.

Article V, Section 3 of the Missouri Constitution provides:

        The supreme court shall have exclusive appellate jurisdiction in all cases
        involving the validity of a treaty or statute of the United States, or of a statute or
        provision of the constitution of this state, the construction of the revenue laws of
        this state, the title to any state office and in all cases where the punishment
        imposed is death. The court of appeals shall have general appellate jurisdiction in
        all cases except those within the exclusive jurisdiction of the supreme court.



                                                  5
(Emphasis added). Article V, Section 5 provides:

         The supreme court may establish rules relating to practice, procedure and
         pleading for all courts and administrative tribunals, which shall have the force and
         effect of law. The rules shall not change substantive rights, or the law relating to
         evidence, the oral examination of witnesses, juries, the right of trial by jury, or the
         right of appeal. The court shall publish the rules and fix the day on which they
         take effect, but no rule shall take effect before six months after its publication.
         Any rule may be annulled or amended in whole or in part by a law limited to the
         purpose.[4]

Article V, Section 11 provides:

         In all proceedings reviewable on appeal by the supreme court or the court of
         appeals, appeals shall go directly to the court or district having jurisdiction, but
         want of jurisdiction shall not be ground for dismissal, and the proceeding shall be
         transferred to the appellate court having jurisdiction. An original action filed in a
         court lacking jurisdiction or venue shall be transferred to the appropriate court.

(Emphasis added). Article V, Section 13 provides:

         The court of appeals shall be organized into separate districts, the number, not
         less than three, geographical boundaries, and territorial jurisdiction of which shall
         be prescribed by law. Each district of the court of appeals shall be composed of
         such number of judges, not less than three, as may be provided by law.

(Emphasis added).

         Our State’s constitution is clear:

         •         The supreme court has exclusive appellate jurisdiction in all cases involving:

                   o      the validity of a treaty or statute of the United States, or of a statute
                   or provision of the constitution of this state,

                   o        the construction of the revenue laws of this state,

4
  In Dorris v. State, 360 S.W.3d 260 (Mo. banc 2012), the Supreme Court held that courts have a duty to sua sponte
enforce the mandatory time limits and the resulting complete waiver in the post-conviction rules—Rules 24.035 and
29.15. Id. at 268. The Dorris court, however, expressly avoided a jurisdictional basis for this requirement by citing
and quoting J.C.W. for the proposition that “[w]hen a statute, or court rule, speaks in jurisdictional terms, or can be
read in such terms, it is proper to read it ‘as merely setting . . . limits on remedies or elements of claims for relief that
courts may grant[,]’” id. at 265 (citing and quoting J.C.W., 275 S.W.3d at 255)(emphasis added), and finding that it
had constitutional jurisdiction to hear the appeal, Dorris, 360 S.W.3d at 265. Rather, it found this requirement
rooted in the “complete waiver” language in Rules 24.035 and 29.15, which “is different from the language of other
rules or statutes that set time limits.” Id. at 266 and 267. No such language or similar language is found in Rule
74.01 or sections 512.020, 547.035 or 547.037.


                                                             6
                o       the title to any state office and

                o       in all cases where the punishment imposed is death.

        •      The court of appeals has general appellate jurisdiction in all cases except
        those within the exclusive jurisdiction of the supreme court.

        •       Each district of the court of appeals has territorial jurisdiction as    prescribed by
law.

        •        If any court or district does not have appellate or territorial jurisdiction,   the
case is to be transferred to the court or district having such jurisdiction.

        •       No case should be dismissed for “want of jurisdiction.”

        I acknowledge that the right to appeal is purely statutory, Riverside-Quindaro Bend

Levee Dist. v. Intercontinental Eng’g Mfg. Corp., 121 S.W.3d 531, 533 (Mo. banc 2003), and

that the Missouri Constitution assigns to the legislature the authority to set the number of

districts of the court of appeals and the geographical boundaries of those districts for territorial

jurisdiction purposes. But, for the same reasons our Supreme Court in J.C.W. refused to elevate

statutory restrictions to erode “the constitutional boundary established by article V of the

Missouri Constitution” giving subject matter jurisdiction to Missouri’s circuit courts “over all

cases and matters, civil and criminal”, J.C.W., 275 S.W.3d at 253 (emphasis added), I likewise

refuse to elevate section 512.020, as implemented by Rule 74.01(a), to vary or change the clear

plenary nature in which the Missouri Constitution assigns appellate jurisdiction to either the

supreme court or the court of appeals in all cases. To the extent that Hughes and other pre-




                                                    7
J.C.W. cases do so under the guise of the word “jurisdiction,”5 they are inconsistent with J.C.W.

and its effort to “bring down to earth and clarify the meaning” of that word.

         Just as the Missouri Constitution made “simple the task of determining jurisdiction” for

circuit courts in J.C.W., it makes simple our task of determining appellate jurisdiction in the case

at hand. The subject matter of this case is not within the exclusive appellate jurisdiction of the

Supreme Court and, therefore by constitutional definition, falls within the court of appeals’

general appellate jurisdiction. The case arises from the circuit court of Dent County, Missouri,

which is within the territorial jurisdiction of the southern district of the court of appeals, as

prescribed by law. See section 477.060 (Dent County is within territorial jurisdiction of the

southern district of court of appeals). In accordance with the Missouri Constitution, this district

of the court of appeals has appellate jurisdiction over this appeal.

         The majority opinion cites to several post-J.C.W. cases for the proposition that




5
  See, e.g., Smith v. State, 63 S.W.3d 218, 219 (Mo. banc 2001) (appeal dismissed because appellate courts lack
jurisdiction over attempted appeals from orders that fail to dispose of all claims as to all parties); Gibson v. Brewer,
952 S.W.2d 239, 244 (Mo. banc 1997) (“If the trial court’s judgments are not final, this Court lacks jurisdiction and
the appeals must be dismissed.”); Comm. for Educ. Equal. v. State, 878 S.W.2d 446, 455 (Mo. banc 1994) (appeal
dismissed for lack of jurisdiction because of no final judgment). The holdings in these and other pre-J.C.W. cases,
including Hughes, dismissing appeals for lack of a final judgment, were based upon the major premise that appellate
courts are required to sua sponte determine their jurisdiction to hear an appeal, the minor premise that the lack of a
final judgment is jurisdictional, and the conclusion drawn from applying the minor premise to the major premise that
an appellate court is therefore required to sua sponte determine whether there is a final judgment in order to hear an
appeal. J.C.W.’s constitutional framework for determining jurisdiction, however, undermines the validity of the
minor premise—lack of a final judgment is jurisdictional—because the final judgment requirement is a creation of
statute and court rule and is not mentioned in or required by the constitutional provisions granting appellate
jurisdiction, see supra.



                                                           8
J.C.W. did not change the landscape regarding the Hughes bright line test.6 First, in Ndegwa v.

KSSO, LLC, 371 S.W.3d 798, 801-02 (Mo. banc 2012), although the court did make the

statement that it was the duty of the court to determine, sua sponte, whether there was a final

judgment,7 the issue in the case was whether a distinct judicial unit allowed the trial court to

certify the “judgment” as final. The Supreme Court determined that the circuit court’s order “did

not resolve a single, distinct judicial unit” and therefore was neither a final nor appealable

judgment. Id. at 802. It did not raise any issue regarding Rule 74.01(a) required signature on a

judgment or denomination of “judgment.”

         In Fannie Mae v. Truong, 361 S.W.3d 400 (Mo. banc 2012), the issue of whether there

was a final appealable judgment was raised by the parties in its point relied on. Id. at 403. That

fact distinguishes it from the case here where neither party raises the issue.8 Moreover, in

Truong, the associate circuit division had ruled against Truong in a summary judgment. Id.

Rather than seek a right to a trial de novo in the circuit court, Truong directly appealed to the
6
  I have no quarrel with Hughes’ bright line test and its usefulness as it relates to the existence of a final judgment.
J.C.W.’s view of jurisdiction, however, countermands Hughes’ linkage of its test to our appellate jurisdiction
thereby triggering a required sua sponte inquiry. Just as the Hughes’ bright line test is useful and helpful, however,
the appellate courts also need a bright line as to their mandated areas of sua sponte inquiry in each case. That line
currently has been drawn to include a jurisdictional inquiry in every case, see Comm. for Educ. Equal., 878 S.W.2d
at 450, and the “complete waiver” inquiry in Rule 24.035 or 29.15 post-conviction cases, see note 3. The inclusion
of any other issues, rules or statutes as falling within that mandated line should be explicit and include a careful
consideration of the nature and role of appellate courts in general, their historical standards of review, and their
limited resources as compared to the vast universe of potential issues, rules, and statutes.
          In addition, had the State raised the issues here that the trial court had not signed the order or designated the
order as a judgment, then we might have an additional analysis: a discussion of whether the Rule 74.01(a) applies to
post-conviction requests for DNA testing.
7
  The Ndegwa court cited Gibson, see note 5, as its sole support for this statement. Gibson is a pre-J.C.W. case that
expressly held that “[i]f the trial court’s judgments are not final, this Court lacks jurisdiction and the appeals must be
dismissed.” Gibson, 952 S.W.2d at 244. Similarly, as cited in the majority opinion, Buemi v. Kerckhoff, 359
S.W.3d 16, 20 (Mo. banc 2011) also relies upon Gibson as support and Dunivan v. State, 466 S.W.3d 514, 517-18
(Mo. banc 2015) relies upon Hughes as support. Neither the majority opinion nor any post-J.C.W. case that I can
find, however, offers any explanation or analysis as to how the pre-J.C.W. jurisdictional analysis, as relied upon by
all, has magically morphed into a post-J.C.W. non-jurisdictional requirement to sua sponte embark upon a quest in
every case in search of the apparently elusive final judgment regardless of whether such an adventure furthers or
hinders the orderly administration of justice.
8
 For the same reason, and in addition to being pre-J.C.W., Spiece v. Garland, 197 S.W.3d 594 (Mo. banc 2006),
cited in the majority opinion, has no application as to whether we are required to sua sponte raise this issue.


                                                            9
Supreme Court of Missouri. Id. The Court then determined the merits of the question whether

Truong was obligated to have a trial de novo in the circuit court or could seek a direct appeal.

Id. at 404. Finding that Truong failed to timely seek a trial de novo in circuit court, the Court

held there was no appellate jurisdiction to hear a direct appeal of the summary judgment. Id. at

404-05.

       Likewise, in Missouri Mun. League v. State, 465 S.W.3d 904 (Mo. banc 2015), the

Supreme Court was not deciding whether the denomination on an order of “Judgment” or the

lack of the judge’s signature on a judgment was jurisdictional, but rather whether the claim on

appeal was moot. Id. at 905. The Court indicated that “mootness implicates the judiciability of a

controversy and is a threshold issue in appellate review.” Id. at 906. The court noted that when

an appellate judgment would not have any practical effect upon any existing controversy, then an

appellate decision is unnecessary. Id.

       In CACH, LLC v. Askew, 358 S.W.3d 58 (Mo. banc 2012), the issue was whether the

plaintiff in the case had standing to sue. Id. at 61. The issue of standing was raised in the

Answer to the Petition. Id. at 60.

       In Spicer v. Donald N. Spicer Revocable Living Trust, 336 S.W.3d 466 (Mo. banc

2011), the Court entered a “judgment” in a quiet title action and then attempted to set it aside

after the expiration of thirty days provided by Rule 75.01. Id. at 468, 470. The Supreme Court

held that the circuit court had no jurisdiction to set aside its earlier judgment. Id. at 470.

       Finally, in an interesting, post-J.C.W. case, Buemi v. Kerckhoff, 359 S.W.3d 16 (Mo.

banc 2011), while the case was pending, the trial court entered a monetary sanction against a

party. Id. at 19. The court noted that the statutory requirement of section 512.020 requires the

issuance of a “final judgment.” Id. at 20. The Supreme Court did not address whether the order




                                                  10
for sanctions was denominated as a judgment but addressed the issue whether the order was a

final judgment in that it resolved all issues in the case, leaving nothing for future

determination”.9 Id. at 25. In fact, it called it an “order” throughout the opinion.10 Because I

would find that this Court has appellate jurisdiction over this appeal, I would address the merits

of this appeal.

                                            MERITS OF THE APPEAL

           As noted, Movant requested forensic testing to prove that he was not a blood relative of

the victim; his request was denied without an evidentiary hearing. His first point claims error in

denying the motion because the “Prosecuting Attorney failed to show cause as ordered by the

Court” why Movant was not entitled to a hearing on his motion. Movant’s second point claims

error in failing to have a hearing “so [Movant] could prove he was not guilty of the charges he

was convicted on.” Movant’s third point claims the motion court erred for failing to issue

findings of fact and conclusions of law. The State responds that the motion itself conclusively

showed that Movant was not entitled to relief and no hearing was required.

           To be entitled to post-conviction DNA testing under section 547.035, the motion must

allege facts demonstrating:

           (1) There is evidence upon which DNA testing can be conducted; and
           (2) The evidence was secured in relation to the crime; and
           (3) The evidence was not previously tested by the movant because:
           (a) The technology for the testing was not reasonably available to the movant at
           the time of the trial;
           (b) Neither the movant nor his or her trial counsel was aware of the existence of
           the evidence at the time of trial; or

9
    In addressing this issue sua sponte, the court cited Gibson, see notes 5 and 7, as support for such requirement.
10
   I question the “finality” of judgments if the post-J.C.W. cases decided under section 547.035 have been
denominated “order.” A cursory review of some of the cases indicates that some of the cases are denominated
“judgment” and some “order.” A decision that there is no final judgment allows those cases to remain pending
indefinitely, awaiting the entry of a final judgment and then a subsequent appeal. Here, there is no question that the
trial court did not seek to retain jurisdiction over this issue and the policy requiring the judge’s signature and the
denomination to be “judgment” would not serve the interests of the litigants or the appellate courts.


                                                            11
       (c) The evidence was otherwise unavailable to both the movant and movant's trial
       counsel at the time of trial; and
       (4) Identity was an issue in the trial; and
       (5) A reasonable probability exists that the movant would not have been convicted
       if exculpatory results had been obtained through the requested DNA testing.

       First, the State claims that it was not necessary for the State to respond because there was

nothing on the face of the motion warranting relief. The motion itself failed to plead facts

demonstrating that DNA testing was unavailable in 2008, when Movant’s case went to trial, nor

did it plead that Movant or his trial counsel were unaware of the existence of evidence to be

tested or such evidence was unavailable to him. It appears from the face of the motion that the

State’s response is correct; therefore, Points I and II should be denied. Movant is not entitled to

any relief in his motion for forensic testing. Movant knew at the time of the charges and the trial

that the allegations were of incest. Testing for DNA to determine paternity was available in

2007, Movant and his counsel would have been aware of such testing, and the evidence would

have been available to them had that been an issue at the time of trial.

       Movant, in his third point, claims that the motion court erred in failing to make findings

of fact and conclusions of law pursuant to section 547.035.8. It is correct that the motion court

did not make any findings of fact and conclusions of law. The State argues that “postconviction

cases are governed by the rules of civil procedure insofar as applicable” and cites Atchison v.

State, 420 S.W.3d 559, 561 (Mo.App. S.D. 2013). Generally, under the civil rules of procedure,

if a party challenging the failure to make statutorily required findings does not file a motion to

amend the judgment, under Rule 78.07(c), the issue is not preserved for appellate review. Id. at

561. Although we have not found a case in which this rule has been applied to a motion for

DNA testing, the purpose of Rule 78.07(c), to put the court on notice of the challenge and allow

the motion court an opportunity to address the issues raised, applies to this type of case. As we




                                                 12
noted, Movant did not plead the elements necessary for relief. Additional findings are not

necessary. See State v. Waters, 221 S.W.3d 416, 419 (Mo.App. W.D. 2006) (where a movant

does not allege facts to satisfy the elements required by Missouri post-conviction DNA testing, it

is not necessary to remand for findings of fact and conclusions of law). I would hold that Rule

78.07(c) applies to a post-conviction motion for forensic testing. Point III should also be denied

and the judgment should be affirmed.

       For these reasons, I dissent from the majority opinion. Further, I certify that the majority

opinion is contrary to a previous decision of an appellate court of this state and hereby transfer

this case to the Supreme Court of Missouri pursuant to Rule 83.03.



Nancy Steffen Rahmeyer, J. – Dissenting Opinion Author




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