Eric Whitehorn, Appellant v. State of Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Eric Whitehorn, Appellant v. State of Missouri, Respondent. Case Number: WD65343 Handdown Date: 03/27/2007 Appeal From: Circuit Court of Cole County, Hon. Thomas J. Brown III Counsel for Appellant: Eric Whitehorn, Pro Se Counsel for Respondent: Shaun Mackelprang and Karen Kramer Opinion Summary: Eric Whitehorn appeals the trial court's overruling of his Rule 29.15 motion alleging that he received ineffective assistance of counsel in his trial. He contends three errors on appeal, one of which is dispositive. Specifically, Whitehorn claims 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 raise by appointed counsel in an amended petition. DISMISSED. Division holds: Because the motion court struck Whitehorn's amended petition before the hearing and did not rule upon all claims contained in his pro se motion, the court's judgment is not final. We, therefore, lack jurisdiction and must dismiss the appeal. Citation: Opinion Author: Ronald R. Holliger, Judge Opinion Vote: DISMISSED. Ellis, P.J., and Ulrich, J., concur.

Opinion: 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 Whitehorn's original pro se motion.(FN1) The motion court did not rule upon all of the claims contained in that motion and refused to hear evidence(FN2) 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 Whitehorn's request to proceed pro se if he so indicates after remand. The appeal is dismissed and remanded for further proceedings. Footnotes: FN1.The motion court initially permitted Whitehorn's appointed counsel to withdraw at Whitehorn's request and then granted his pro se motion to strike the amended petition because of Whitehorn's desire to proceed on the issues raised by his original motion. FN2.It did permit an offer of proof by Whitehorn pro se. Separate Opinion: None

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.