Court of Appeals of Missouri, Western District, First Division
from the Circuit Court of Cole County, Missouri The Honorable
Daniel R. Green, Judge.
Before: Cynthia L. Martin, Presiding Judge, and James Edward
Welsh and Karen King Mitchell, Judges.
King Mitchell, Judge.
Knight appeals the dismissal, for failure to state a claim,
of his petition for declaratory judgment against the Missouri
Board of Probation and Parole. Because Knight failed to
timely file his notice of appeal, we lack jurisdiction and
being sentenced to three concurrent terms of imprisonment,
totaling twelve years, upon conviction for three felonies,
Knight filed a petition for declaratory judgment in the Cole
County Circuit Court, alleging that the Board violated his
rights to due process and equal protection by failing to
comply with statutory directives that require parole
decisions to be made by a majority of the Board when
determining Knight's release date. Knight's parole
was denied by a unanimous vote of the five members of the
Board, but because two positions on the Board were vacant at
the time, Knight claimed his due process rights were
violated. The Board filed a motion to dismiss for failure to
state a claim, arguing that Knight lacked any liberty
interest in either parole or the Board's failure to
follow its own rules when determining parole eligibility. The
trial court granted the Board's motion on November 28,
2016. Knight appealed.
reaching the merits of Knight's claim on appeal, we first
must address the Board's argument that we lack
jurisdiction as a result of Knight's failure to file a
timely notice of appeal. Alumax Foils, Inc. v. City of
St. Louis, 939 S.W.2d 907, 910 (Mo. banc 1997) ("In
every case it is incumbent on the Court to determine its
jurisdiction before reaching the merits of an appeal.").
"An indispensable prerequisite to appellate jurisdiction
and a vital step for perfecting an appeal is the timely
filing of a notice of appeal." State v. Carter,
202 S.W.3d 700, 706 (Mo. App. W.D. 2006) (quoting State
ex rel. Blackwell v. Elrod, 604 S.W.2d 768, 769 (Mo.
App. E.D. 1980)). "If a notice of appeal is untimely,
the appellate court is without jurisdiction and must dismiss
the appeal." Id. (quoting In re Marriage of
Short, 847 S.W.2d 158, 161 (Mo. App. S.D. 1993)).
81.04(a) provides that "[n]o . . . appeal
shall be effective unless the notice of appeal shall be filed
not later than ten days after the judgment, decree, or order
appealed from becomes final." "For the purpose of
ascertaining the time within which an appeal may be taken . .
. [a] judgment becomes final at the expiration of thirty days
after its entry if no timely authorized after-trial motion is
filed." Rule 81.05(a)(1).
the judgment was entered on November 28, 2016, and neither
party filed any after-trial motions. Thus, the judgment
became final on December 28, 2016. The notice of appeal was
then due no later than January 7, 2017. But because January
7, 2017, was a Saturday, the notice of appeal was due the
following Monday, January 9, 2017. Rule 44.01(a).
January 5, 2017, Knight completed a Notice of Appeal form but
did not file it until February 6, 2017. Thus, his notice of
appeal was untimely.
reply brief, Knight argues that he sought and was granted
leave to file a late notice of appeal under Rule 30.03. Rule
30.03, however, applies to appeals from only felony
convictions and post-conviction matters based upon felony
convictions. Knight's appeal is based upon a civil
matter-a petition for declaratory judgment. Thus, the
applicable rule is Rule 81.07.
81.07(a) establishes a process for obtaining a special order
permitting a late notice of appeal." Carter,
202 S.W.3d at 706 (quoting Berger v. Cameron Mut. Ins.
Co., 173 S.W.3d 639, 640 (Mo. banc 2005)). In pertinent
part, the rule provides:
The special order may be allowed by the appellate court only
upon motion with notice to the adverse parties filed within
six months from the date the judgment appealed from became
final for purposes of appeal and only upon a showing by
affidavit, or otherwise, ...