State of Missouri, Respondent v. Michael Box, Appellant.

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: State of Missouri, Respondent v. Michael Box, Appellant. Case Number: ED85800 Handdown Date: 04/25/2006 Appeal From: Circuit Court of St. Charles County, Hon. William Lohmar Counsel for Appellant: Michael Box, Pro Se Counsel for Respondent: Shaun J. Mackelprang Opinion Summary: Michael Box appeals from the motion court's judgment denying him relief on his alleged claims of abandonment and conflict of interest by his post-conviction counsel. DISMISSED. Division Three holds: Res judicata precludes Box from re-appealing the motion court's judgment on his Rule 29.15 post-conviction relief motion. Citation: Opinion Author: Booker T. Shaw, J. Opinion Vote: DISMISSED. Crane, P.J., and Mooney, J., concur Opinion: Michael Box ("Movant") appeals pro se from the motion court's judgment denying him relief on his alleged claims of abandonment and conflict of interest by his post-conviction counsel. We find that res judicata precludes Movant from

re-appealing the motion court's judgment on his Rule 29.15 post-conviction relief motion, and dismiss the appeal. This Court affirmed Movant's convictions after a jury trial for first-degree robbery, armed criminal action, first- degree burglary, two counts of felony stealing without consent and exceeding the posted speed limit in State v. Box, 81 S.W.3d 79 (Mo. App. E.D. 2002). This Court also affirmed the denial of Movant's Rule 29.15 post-conviction relief without an evidentiary hearing in Box v. State, 161 S.W.3d 897 (Mo. App. E.D. 2005). Here, Movant alleges that he raised issues of abandonment and conflict of interest as to his post-conviction counsel during his original Rule 29.15 proceeding and the motion court erred in not granting him relief on these issues. These allegations, however, should have been raised in Movant's appeal from the motion court's judgment on his original Rule 29.15 motion. Res judicata bars the re-litigation of the same cause of action because the prior judgment is decisive not only on matters that were actually litigated in the prior action, but also those matters that could have been raised. State ex rel Nixon v. Jones, 108 S.W.3d 187, 190 (Mo. App. W.D. 2003). Movant is therefore precluded from asserting these prior claims in this present appeal by res judicata. Movant's appeal is dismissed.(FN1) DISMISSED. Footnotes: FN1. To the extent Movant is attempting to appeal from the motion court's denial of a motion to re-open his Rule 29.15 post-conviction proceeding to assert different claims of abandonment by his post-conviction counsel, we are unable to review any such motion or any decision by the motion court because the record before us does not reveal the filing by Movant of such a motion in the motion court or a judgment therefrom. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.