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Knight v. Missouri Board of Probation and Parole

Court of Appeals of Missouri, Western District, First Division

November 21, 2017

TROY KNIGHT, Appellant,
v.
MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.

         Appeal 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.

          Karen King Mitchell, Judge.

         Troy 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 must dismiss.

         Background

         After 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.

         Analysis

         Before 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)).

         Rule 81.04(a)[1] 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).

         Here, 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).

         On 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.

         In his 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.

         "Rule 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, ...

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