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Jendro v. State

Court of Appeals of Missouri, Southern District, Second Division

December 17, 2014

JEFFREY D. JENDRO, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent

APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY. Honorable Timothy W. Perigo, Circuit Judge.

APPEAL DISMISSED.

GARY E. BROTHERTON, Columbia, MO, for Appellant.

SHAUN J. MACKELPRANG, Jefferson City, MO, for Respondent.

DON E. BURRELL, J. - OPINION AUTHOR. MARY W. SHEFFIELD, P.J. - CONCURS. NANCY STEFFEN RAHMEYER, J. - CONCURS.

OPINION

DON E. BURRELL, J.

Page 334

Jeffrey D. Jendro (" Movant" ) is attempting to appeal from a " Judgment and Order" that " overruled and denied" his claim that he had been abandoned by post-conviction relief (" PCR" ) counsel. See Rule 29.15.[1] Movant claims the motion court clearly erred in finding that he was not abandoned by his second of three PCR attorneys and " in overruling Movant's motion for [PCR] without making a single finding of fact or conclusion of law regarding any claim in Movant's Rule 29.15 motion[.]"

Because the motion court's " FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT" (" abandonment judgment" ) did not address Movant's substantive PCR claims, the abandonment judgment was not a final, appealable order, and we must dismiss this premature appeal.

Facts and Procedural History

A jury found Movant guilty of sexual offenses that occurred in August 2006. This court affirmed his resulting convictions on direct appeal in State v. Jendro, 242 S.W.3d 752, 753 (Mo. App. S.D. 2007). Movant timely filed a pro se PCR motion (" original motion" ) on March 10, 2008, alleging 34 claims for relief. Appointed counsel (" first counsel" ) entered an appearance on Movant's behalf and successfully requested an extension of time to file an amended PCR motion. That request was granted, and first counsel's amended PCR motion (" first amended motion" ) was timely filed on June 6, 2008.

The first amended motion asserted that trial counsel was ineffective in failing to object to: 1) questions posed to the victim on redirect examination about a cell phone provided by Movant when the topic had not been pursued in prior questioning with this witness; and 2) an argument the prosecutor made during the sentencing phase of Movant's trial about Movant's future dangerousness. The first amended motion also claimed that Movant was denied due process " when the jury recommended and the trial court imposed a sentence greater

Page 335

than [that] instructed as applied to [the sodomy ...


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