Owsley v. Nixon , 207 S.W.3d 722 ( 2006 )

RONALD R. HOLLIGER, Presiding Judge.

Michael Owsley appeals the denial by the circuit court of his petition for a writ of mandamus. In his petition, he sought to have his conviction reversed. He was convicted on October 17, 2001, of stealing by deceit and later sentenced to five years imprisonment and placed on probation. Owsley’s conviction and sentence were affirmed on appeal in State v. Owsley, 91 S.W.3d 704 (Mo.App. E.D.2002) (per curiam). On April 7, 2003, his probation was revoked. Owsley began the current litigation by filing a “Petition in Mandamus” on July 11, 2005. The circuit court summarily dismissed the petition because it “fail[ed] to state a cause of action upon which relief may be granted.”

A denial of a writ of mandamus is not appealable unless a decision has been made on the merits, by, for example, “de-terminpng] a question of fact or law.” Delay v. Mo. Bd. of Prob. & Parole, 174 S.W.3d 662, 664 (Mo.App. W.D.2005) (quoting Wheat v. Mo. Bd. of Prob. & Parole, 982 S.W.2d 835, 838 (Mo.App. W.D.1996)). 'When a circuit court denies a preliminary writ of mandamus, appeal is not proper; instead, the petitioner must file the writ in” the next highest court. Id. (citing Wheat, 932 S.W.2d at 838). In this case, the circuit court summarily dismissed the writ and made no decision on the merits. Therefore, this court does not have jurisdiction, and the proper course of conduct is for Owsley to file a writ of mandamus in this court rather than an appeal to this court.

Appeal dismissed.

PAUL M. SPINDEN, Judge, and LISA WHITE HARDWICK, Judge, concur.