Opinion
No. WD 65343.
March 27, 2007.
Appeal from the Circuit Court of Cole County, Thomas J. Brown III, Judge.
Eric Whitehorn, Jefferson City, appellant pro se.
Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Mackelprang, Karen Kramer, Office of Attorney General, Jefferson City, for respondent.
Prior report: 114 S.W.3d 407.
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. The motion court did not rule upon all of the claims contained in that motion and refused to hear evidence 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 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.
It did permit an offer of proof by Whitehorn pro se.
The appeal is dismissed and remanded for further proceedings.
JOSEPH M. ELLIS, Presiding Judge, and ROBERT G. ULRICH, Judge, concur.