Court of Appeals of Missouri, Western District, Second Division
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI. The Honorable Daniel R. Green, Judge.
Jesse Powell, Appellant, Pro se.
Caroline M. Coulter, for Respondent.
Before Division Two: Anthony Rex Gabbert, Presiding, Judge, Joseph M. Ellis, Judge and Karen King Mitchell, Judge. All concur.
Joseph M. Ellis, Judge.
Appellant Jesse Powell appeals pro se from the Circuit Court of Cole County's denial of his petition for a writ of mandamus. Appellant contends that the Missouri Department of Corrections (" the DOC" ) is impermissibly requiring him to serve his sentences in installments. For the following reasons, the appeal is dismissed.
On May 5, 2014, Appellant filed a writ of mandamus with the Circuit Court of Cole County in which he alleged that the DOC was unconstitutionally requiring him to serve his prison sentences in installments. The circuit court did not issue a preliminary order in mandamus as provided for in Rule 94.04, but rather issued a summons to the DOC. The DOC subsequently filed suggestions in opposition to Appellant's writ petition.
On August 11, 2014, the circuit court issued its judgment and order denying Appellant's writ of mandamus. In its judgment, the circuit court expressly found that Appellant was not being unconstitutionally required to serve his sentences in installments. Appellant now appeals from the circuit court's denial of his writ petition.
Before we can address the merits of Appellant's argument, we must first determine whether we have authority to entertain this appeal. " Generally, when the circuit court denies a petition for writ of mandamus, the petitioner's proper course of action is not to appeal the denial but to file the writ in a higher court." Stone v. Mo. Dep't of Corrections, Prob. & Parole Bd., 313 S.W.3d 158, 160 (Mo. App. W.D. 2010). " By contrast, where a preliminary [order] is granted and the court then determines on the merits whether the writ should be made permanent, or quashed, then appeal is the proper remedy." Wheat v. Mo. Bd. of Prob. & Parole, 932 S.W.2d 835, 838 (Mo. App. W.D. 1996).
Here, the circuit court did not issue a preliminary order in mandamus as provided in Rule 94.04. Rather, it issued a summons to the DOC, a procedure not authorized by Rule 94. The Missouri Supreme Court recently had occasion to address this practice.
In United States Department of Veterans Affairs v. Boresi, 396 S.W.3d 356, 358 (Mo. banc 2013), the Department of Veterans Affairs (" the VA" ) sought to intervene in a workers' compensation case based on a federal statute authorizing intervention to recover benefits the VA had paid on behalf of the claimant worker as a result of the alleged work related injury. The administrative law judge (" ALJ" ) denied the motion, and the VA filed a petition for writ of mandamus in the Circuit Court of the City of St. Louis asking the court to direct the ALJ to permit the VA's intervention. Id. The circuit court did not issue a preliminary order of mandamus, but rather issued a summons to the ALJ, who then filed a response and suggestions in opposition. Id. The circuit court held a hearing and then denied the VA's writ petition. Id. The VA subsequently appealed to the Eastern District of this Court, and after opinion, the Supreme Court granted transfer. Id.
The Supreme Court chose to decide the appeal on its merits. In doing so, the Court chose its language carefully. It declared that " [a]n appeal will lie from the ...