Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of Cape Girardeau County Hon. Benjamin
G. DOWD, JR., JUDGE
Goetz ("Movant") appeals from the judgment denying
his Rule 29.15 motion without an evidentiary hearing. Because
the judgment is not final, we must dismiss the appeal.
was convicted of child molestation in the first degree after
a jury trial, and the court sentenced him to eight years in
prison. After his conviction was affirmed on appeal, Movant
filed a timely pro se motion under Rule 29.15. Counsel was
appointed and filed a timely amended post-conviction motion.
Therein, Movant asserted two distinct claims of ineffective
assistance of counsel: 1) that counsel failed to advise
Movant of the risks of receiving an eight-year sentence if he
were convicted at trial and 2) that counsel failed to object
to the sentence on grounds that the court based it on
Movant's lack of remorse and exercise of his right to
proceed to trial.
motion court entered an order and judgment denying this
motion. But it only addressed the first claim and did not
even mention the second claim. The court stated that
"Movant's 29.15 motion is clearly insufficient"
and Movant "is entitled to no relief for the reasons
stated herein." The court then stated that "Movant
attacks his conviction by motion under Rule 29.15, claiming
trial counsel was ineffective for failing to advise him of
the risks of receiving an eight-year sentence after a jury
conviction." The motion court described Movant's
"sole contention" as counsel's failure to force
Movant into a guilty plea and found that "claim"
was refuted by the record. After discussing the places in the
record that refuted this claim, the motion court again
referred to "Movant's contention that trial counsel
failed to convince him that there was a real possibility the
jury might render a guilty verdict" and found that
contention to be self-serving, unsupported by the evidence
and without merit. The court ordered that "Movant's
29.15 motion is DENIED without an evidentiary hearing."
filed this appeal, and shortly after his brief was filed in
this Court, the Supreme Court issued its opinion in Green
v. State, 494 S.W.3d 525 (Mo. banc 2016). In
Green, the Court held that when a motion court fails
in its judgment to acknowledge, discuss, adjudicate or
dispose of all of the claims asserted in the post-conviction
motion, the judgment is not final and the appeal must be
dismissed. Id. at 532-33. In that case, the motion
court had addressed each of the five claims in the
movant's amended motion, but failed to address two claims
contained in the pro se motion (which had been properly
incorporated into the amended motion by being physically
stapled thereto). Id. at 528-29. Because the court
only addressed and adjudicated the five claims in the amended
motion, the judgment did not dispose of all the claims before
it and was not final. Id. at 533 (citing Rule
74.01(b) and expressly concluding it applied in Rule 29.15
State contends in its responsive brief that, under
Green, the judgment in this case lacks finality, and
we agree. As in Green, the
motion court in this case did not even mention one of
Movant's claims of ineffective assistance of counsel,
much less discuss, adjudicate or dispose of it. Although the
court denied "the motion" and found Movant entitled
to "no relief, " under Green such blanket
denials are deemed to refer only to the claims that are
actually mentioned in the judgment. In Green, the
motion court said the "claim for post-conviction relief
must be denied, " and the Supreme Court found that this
disposition "clearly spoke to only the five claims in
the amended motion"-which had been discussed in the
judgment-and as a result the two claims in the pro se
motion-which were not discussed-were never adjudicated.
Id. at 530.
it adjudicates and disposes of some, but not all of the
claims before it, the judgment here is not final under Rule
74.01(b). The appeal is dismissed.
T. Quigless, P.J. and Lisa S. Van Amburg, concur.
 Movant has not filed a reply brief,
but in his opening brief admitted that the court did not
address the second claim. He appeared, however, to believe he
had waived the issue because he also stated that he had not
filed a motion under Rule 75.01. A "motion" under
Rule 75.01 is unnecessary to preserve error in
post-conviction cases because that rule does not provide for
the filing of a motion. Skillicorn v. State, 22
S.W.3d 678, 690 (Mo. banc 2000). To the extent Movant
believed the issue was waived because he did not file a
motion to amend under Rule 78.07(c), that rule is also
inapplicable here because it only addresses errors in the
"form or language of the judgment" and failing to
dispose of or adjudicate a claim is not a mere error of form.
Green, 494 S.W.3d at 530 (distinguishing cases in
which the ...