Fleming v. Rowley

148 S.W.3d 855 (2004)

William FLEMING, Appellant, v. Larry ROWLEY, Superintendent, Missouri Eastern Correctional Center, Respondent.

No. ED 84943.

Missouri Court of Appeals, Eastern District, Division Five.

October 26, 2004.

William Fleming, St. Louis, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, for respondent.

GEORGE W. DRAPER III, C.J.

William Fleming (Appellant) appeals from a judgment dismissing his petition for writ of habeas corpus.

We are obligated in every case to determine whether we have jurisdiction and if we lack jurisdiction to entertain an appeal, then it should be dismissed. Fischer v. City of Washington, 55 S.W.3d 372, 377 (Mo.App. E.D.2001). Here, Appellant seeks to appeal from the judgment dismissing his petition for writ of habeas corpus in the circuit court. An appeal does not lie from the denial or dismissal of a petition for habeas corpus. McDermott v. State, 120 S.W.3d 261, 262 (Mo.App. E.D.2003). A petitioner's remedy where a petition for writ of habeas corpus is dismissed is to file a new petition in a higher court. Webster v. Purkett, 110 S.W.3d 832, 837 (Mo.App. E.D.2003).

We issued an order directing Appellant to show cause why his appeal should not be dismissed. Appellant filed a response, but offers no argument regarding the lack of jurisdiction. Instead, he argues the merits of his case. Without jurisdiction, this Court cannot address the merits.

The appeal is dismissed for lack of an appealable judgment.

LAWRENCE G. CRAHAN, J., and GLENN A. NORTON, J., concur.