Dewayne Hubert, Appellant v. James Purkett, Superintendent of Eastern Reception Diagnostic and Correctional Center, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Dewayne Hubert, Appellant v. James Purkett, Superintendent of Eastern Reception Diagnostic and Correctional Center, Respondent. Case Number: ED85996 Handdown Date: 06/30/2005 Appeal From: Circuit Court of St. Francois County, Hon. James H. Kelly Counsel for Appellant: Dewayne Hubert Counsel for Respondent: Stephen D. Hawke Opinion Summary: Dewayne Hubert appeals from a judgment denying his petition for writ of habeas corpus. APPEAL DISMISSED. Division Five holds: No appeal lies from a judgment dismissing a petition for a writ of habeas corpus.

Citation: Opinion Author: George W. Draper III, C.J. Opinion Vote: DISMISSED. Crahan, J. and Norton, J., Concur Opinion: Dewayne Hubert (Appellant) appeals from a judgment denying his petition for writ of habeas corpus. The appeal is dismissed. Appellant filed a petition for a writ of habeas corpus in the circuit court. The petition was denied and Appellant has appealed to this Court. In response, the State has filed a motion to dismiss the appeal, contending this Court has no jurisdiction of the appeal. Appellant has not filed a response to the motion.

Here, Appellant seeks to appeal from the circuit court's judgment denying his petition for writ of habeas corpus. An appeal does not lie from the denial of a petition for habeas corpus. Blackmon v. Missouri Board of Probation and Parole , 97 S.W.3d 458 (Mo. banc 2003); McDermott v. State , 120 S.W.3d 261, 262 (Mo. App. E.D. 2003). 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). A petitioner's remedy where a petition for writ of habeas corpus is denied is to file a new writ petition in a higher court. Webster v. Purkett , 110 S.W.3d 832, 837 (Mo. App. E.D. 2003). Appellant has not filed a new writ petition. The appeal is dismissed for lack of an appealable judgment.

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.