 

In the Missouri Court ot Appeals
Eastern District

DIVISION FOUR
STATE OF MISSOURI, ) No. ED1036S9
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
) Honoi'able Cliristopher McGraugii
KEVIN IVORY, )
)
Appellant. ) FILED: June 7, 2016
Introduction

Appellant Kevin Ivory ("Ivory") appeals from tlie judgment of the trial court denying
Ivory’s writ of inandaiiius. lvoi‘y was convicted of first-degree murder and armed criminal

action. On appeal, ivory contends that the trial court erred in denying his writ of inandainus.

Because there was no final appealable judgment from the trial court, ivoi‘y’s appeal is disniissed.

Factual and Procedtiral History

Ivo1'y was convicted by a jury of murder in the first degree and armed criminal action iii
connection with an incident on June 19, 1993. On May 27, 1994, ivory was sentenced to life in
prison without the possibility of probation or parole on the inurder charge, and thirty years’
imprisonment on the aimed criminal action charge. The sentences were ordered to be served
consecutively Ivory subsequently filed a motion for post-conviction relief which was denied by

the motion court. This Court affirmed the judgment of the motion coui't.

On Septeinber 18, 2015, lvory filed a writ of inandainus in the Circuit Court of the City
of St. Louis asking the trial court to vacate his convictions or grant an evidentiary hearing based
on an alleged “fatal variance" between the charging documents and the verdict directing

instructions The trial court denied the writ of mandanius. This appeal follows.

Point on Appeal

ln lvoi'y’s sole point on appeal, he contends that the trial court erred in denying his writ

of mandainus.
Discussion

Before we may address the merits of Ivory’s appeal, we must first determine whether we
have authority to entertain this appeal Powell v. De;:_)’t of Correction , 463 S.W.3d 83 8, 840
(Mo. App. W.D. 2015). We have a duty to determine, sua spom'e, whether the trial court entered
a final appealable judgment before we may undertake substantive review of the issues presented
on appeal. Banks v. Siay, 410 S.W.$d 767, 768 (Mo. App. E.D. 2013).

"Gerierally, when the [trial] court denies a petition for writ of mandainus, the petitionei"s
proper course of action is not to appeal the denial but to file the writ in a higher court." l*‘_c@,
463 S.W.3d at 840. An appeal is a proper and available remedy only in those cases requesting
the issuance of a writ "where a preliminary order is granted and the court then determines on the

merits whether the writ should be made perinanent, or quashed," State ex rel. Tivol Plaza 1nc. v.

 

Missouri Comin’n on Human Right , 2016 WL 1435970, at *2 (Mo. App. W.D. Apr. 12, 2016),
or in cases where the trial court "issues a suinmons, the functional equivalent of a preliminary
order, and then denies a permanent writ." U.S. Dept. of Veterans Affairs v. Boresi, 396 S.W.Sd
356, 359 (Mo. banc 2013). Thus, when there has been no summons or preliminary order and the

writ of mandamus is denied by the trial court, there is no final appealable judgment I;d.

Here, the trial court denied Ivory’s writ of mandamus and did not enter a summons or a
preliminary order, rneaiiing that the trial court did not enter a final appealable judgment
Aceordingly, we have no authority to entertain Ivory’s appeal. Ivory’s correct course of action
after the denial of his writ of mandamus was to file a writ of mandamus in the next higher court.

Powell 463 S.W.?>d at 841. Because we do not have authority to entertain Ivory’s appeal from a

 

judgment that was not final, his appeal is dismissed

Conclusion

K€irar s_ or)ENW}xLD, wage

The appeal is dismissed

Philip M. Hess, J., concurs.
Lisa P. Page, J., concurs.

