Gary Dieckhoff, 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: Gary Dieckhoff, Appellant, v. State of Missouri, Respondent. Case Number: WD63163 Handdown Date: 07/13/2004 Appeal From: Circuit Court of Cooper County, Hon. Donald Lloyd Barnes Counsel for Appellant: Susan Lynn Hogan Counsel for Respondent: Deborah Daniels and Leslie McNamara Opinion Summary: Gary Dieckhoff appeals the denial of his Rule 24.035 motion for postconviction relief. DISMISSED. Division holds: The "judgment" on appeal is not a final judgment under Rule 74.05, as it is not signed by the judge. Lacking a final judgment, an appellate court has no jurisdiction. Citation: Opinion Author: Ronald R. Holliger, Judge Opinion Vote: DISMISSED. Spinden, P.J., and White Hardwick, J., concur. Opinion: Gary Dieckhoff entered a plea of guilty and was convicted of two counts of statutory sodomy in the first degree, Section 566.062, RSMo., for having deviate sexual intercourse with a minor. He now appeals the denial of his Rule 24.035 motion without an evidentiary hearing. Because there is no judgment in conformance with Rule 74.01, the appeal is dismissed. A motion under Rule 24.035 is a civil proceeding. Subsection (j) requires the court to make Findings of Fact and Conclusions of Law whether or not an evidentiary hearing is held. Subsection (k) of that Rule provides that an order

sustaining or denying a motion under the rule shall be considered a final judgment for purposes of appeal. Finality of judgments is governed by Rule 74.01. In this case, the record on appeal contains a "docket entry" signed only by the clerk. Although a docket entry may constitute a judgment under the rule, it still must contain the signature of the judge. See Ballinger v. Rhees , 39 S.W.3d 842, 843 (Mo. App. 2000). Alternatively, initials added to a handwritten docket entry by the trial judge have been deemed sufficient to satisfy the signature requirement of Rule 74.01(a). See In re Prough , 8 S.W.3d 186, 187 (Mo. App. 1999). (FN1) Here, however, the docket entry in question bears neither the trial judge's signature nor his initials. (FN2) Without a final judgment, this court has no jurisdiction. See id. Appeal dismissed. (FN3) Footnotes: FN1. The practice of initialing docket entries in lieu of a full signature is a practice we have previously discouraged. See, e.g., Rhodlander v. Liberty Christian Fellowship , 6 S.W.3d 402, 405 n.1 (Mo. App. 1999). FN2. The record on appeal does contain a subsequent printed docket entry reciting the history of the case and denying Dieckhoff's motion for reconsideration. This latter entry is both signed by the clerk and bears the trial judge's typewritten initials. Even assuming, arguendo , that typed, rather than handwritten, initials would suffice to constitute a "signature" under Rule 74.01(a), this additional docket entry would not remedy the defects in the prior docket entry denying Dieckhoff's Rule 24.035 motion. See Ballinger, 39 S.W.3d at 843 (finding nunc pro tunc order insufficient to remedy defects under Rule 74.01(a)). FN3. We observe that the docket entry denying Dieckhoff's motion for post-conviction relief contains no conclusions of law and only sparse findings of fact which the parties and court may wish to reconsider after remand. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.