author: NANCY STEFFEN RAHMEYER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gerald E. RAYBORN, Defendant-Appellant.
    No. 26635.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 28, 2005.
    Irene Earns, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Robert J. (Jeff) Bartholomew, Jr., Asst. Atty. Gen., Jefferson .City; for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Gerald E. Rayborn (“Appellant”) brings this appeal after a jury trial from his convictions for forcible sodomy, felonious restraint, and two counts of armed criminal action. Appellant’s sole point on appeal claims trial court error in refusing to declare a mistrial after Appellant alleges a police officer made an impermissible comment on Appellant’s silence after being given a Miranda warning. We find no merit to Appellant’s claims and affirm.

The claimed error consists of one question by the prosecutor and answer by a detective, who had interviewed Appellant after his arrest:

[Prosecutor]: And after you [gave the Miranda warnings], did [Appellant] make any — did he respond in any way to the Miranda warning?
[Officer Allen]: He stated that he would rather—
(Objection and subsequent discussion out of the jury’s hearing)

Appellant claims this question and answer implied to the jury that he would “not talk any more,” and thus would be an impermissible comment upon Appellant’s invocation of his privilege to remain silent or request an attorney. Appellant argues that the only interpretation of the detective’s statement implied Appellant’s guilt because he refused to communicate further with the detective. Appellant further contends that the prosecutor knew that Appellant had invoked his right to an attorney when the question was asked of the detective.

Appellant’s counsel requested a mistrial, but it was denied; Appellant’s counsel refused the offer of a limiting instruction. As further relief, the court reversed its earlier denial of a motion to suppress a statement and the prosecutor did not pursue the line of questioning concerning any statements made by Appellant. The Court found the partial answer of Detective Allen to be “ambiguous” and susceptible to different interpretations.

The trial court’s refusal to grant a mistrial is reviewed for abuse of discretion. State v. Goodwin, 65 S.W.3d 17, 24 (Mo.App. S.D.2001). A trial court abuses its discretion when its ruling is “clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the trial court’s action, it cannot be said that the court abused its discretion.” State v. Roller, 31 S.W.3d 152, 158 (Mo.App. S.D.2000).

We find the trial court did not abuse its discretion in refusing to grant a mistrial. We do not find that the only conclusion the jury could have reached was that Appellant had invoked his right to remain silent and to have an attorney present. It is pure speculation at this point to determine what the jury thought of the partial answer. Although not asking the most precise question, the prosecutor was entitled at trial to get to his real question concerning the actual, unsolicited statement that Appellant had made on his way out of the interview room. The prosecutor terminated his inquiry about the interview with Appellant and moved to a different area of inquiry. The answer given by the detective was brief and ambiguous with no further comment at any time by the prosecutor. The court offered to advise the jurors to disregard the detective’s statement, but the offer was declined by Appellant’s counsel. The point is denied and the judgment is affirmed.

PREWITT, P.J., PARRISH, J„ concurring.

      . Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The statement which Appellant was alleged to have made while leaving Detective Allen’s office was, "I should not have gone to Gary’s house. I should not have done what I done.”


source: Caselaw Access Project

author: VICTOR C. HOWARD, Judge.

license: Public Domain

text:
    Bobby RICHARDS, Appellant, v. TREASURER OF the STATE of Missouri as Custodian of the Second Injury Fund, Respondent.
    No. WD 65372.
    Missouri Court of Appeals, Western District.
    Nov. 29, 2005.

      Jerry Renter, Sedalia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Kristen E. Paulsmeyer, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before: SPINDEN, P.J., and HOWARD and HOLLIGER, JJ.
   VICTOR C. HOWARD, Judge.

Bobby Richards (“Richards”) appeals from a decision of the Labor and Industrial Relations Commission (“Commission”) finding that the Treasurer of the State of Missouri, as Custodian of the Second Injury Fund (“Second Injury Fund”), is not hable for Richards’ preexisting carpal tunnel syndrome. Richards argues two points on appeal. In Point I, Richards argues that the Commission erred in denying Second Injury Fund liability, because Richards’ prior injuries constituted a hindrance or obstacle to employment and reemployment. In Point II, Richards argues that the Commission erred in denying Second Injury Fund liability because the total disability from all of the injuries he sustained exceeded the mere sum of the individual disabilities. For the following reasons, we affirm the judgment of the Commission.

Background

In August 2001, Richards sustained a right shoulder injury while working at Se-dalia Steel Company. Prior to the hearing, the parties stipulated that Richards sustained a 17.5% permanent partial disability of the right shoulder as a result of the August 2001 accident.

Richards testified at the Division of Workers’ Compensation hearing about a previous injury that caused problems with his hands after he fell from a truck and landed on his hands while working in December 1998. After this injury, Richards said he experienced numbness and tingling in his hands. Richards also said that he had trouble sleeping and frequently dropped things. Richards sought treatment from Dr. Gunter on December 16, 1998, and January 13, 1999, for complaints of bilateral hand pain. The pain in Richards’ right hand was worse than the pain in his left hand. During the first visit, Dr. Gunter gave Richards splints and prescribed Daypro (an anti-inflammatory drug). During the second visit, Dr. Gun-ter noted that Richards’ condition improved with the use of splints, but symptoms continued without the splints. At the time of the second visit, Richards was scheduled to return in one month if symptoms persisted, but Richards never returned to Dr. Gunter.

Richards said the condition of his hands continued to worsen, but he did not seek any further medical treatment until after he hurt his shoulder in 2001. He eventually had surgery on his left hand in October 2003.

At the Division of Workers’ Compensation hearing before an administrative law judge (“ALJ”), Richards introduced the deposition testimony of Dr. James Stuck-meyer, an orthopedic surgeon who said he examined Richards on January 14, 2003. Dr. Stuekmeyer made what he called “classic findings” of bilateral carpal tunnel syndrome and said Richards should be evaluated with electromyograms (EMGs). In Dr. Stuckmeyer’s opinion, Richards suffered a twenty percent permanent partial disability in each wrist. Dr. Stuekmeyer also testified that Richards probably had a rotator cuff tear in his right shoulder that resulted in a twenty-five percent permanent partial disability and a five percent permanent partial disability, of Richards’ body due to pain in the thoracolumbar spine. Dr. Stuekmeyer further opined that as a result of the injuries to Richards’ right shoulder, both wrists and back,' Richards had a permanent partial disability of thirty-five percent of his body, including the permanent partial disability to his back. Dr. Stuekmeyer also testified on redirect examination that a ten percent augmentation factor should apply.

Richards claimed he was entitled to compensation from the Second Injury Fund because his preexisting bilateral carpal tunnel condition combined with his subsequent shoulder injury to produce a total disability greater than the sum of the individual disabilities. However, on November 1, 2004, the ALJ concluded that Richards’ preexisting carpal tunnel syndrome did not meet the threshold for Second Injury Fund liability and the Second Injury Fund was not liable for any deterioration of Richards’ carpal tunnel syndrome subsequent to the shoulder injury.

Richards appealed the decision of the Division of Workers’ Compensation to the Commission pursuant to section 287.480. The Commission found that the ALJ correctly weighed and evaluated the medical and lay evidence in reaching her conclusions. The Commission adopted the findings of the ALJ as to the credibility, reliability, and probative worth of the medical and lay evidence. .

The Commission agreed with the ALJ that the testimony of Richards and Dr. Stuekmeyer failed to establish the necessary criteria for compensation from the Second Injury Fund. The Commission also found that Dr. Stuckmeyer’s ratings, when reduced to weeks of compensation as calculated by the ALJ, do not establish any impact from the combination of present disability added to preexisting disability, thus barring recovery from the Second Injury Fund under section 287.220. The Commission did not accept the testimony of Dr. Stuekmeyer as credible nor as dis-positive of the questions of disability. Richards’ carpal tunnel syndrome was not shown to be disabling by harming his earning ability. On March 22, 2005, the Commission held that the award of the ALJ was supported by competent and substantial evidence and made in accordance with the Missouri Workers’ Compensation Act. The Commission affirmed the award and decision of the ALJ and awarded no compensation from the Second Injury Fund. This appeal follows.

Standard of Review

Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo.banc 2003), provides:

A court must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence. Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.

(Citation omitted.)

Point I

In Point I, Richards argues that the Commission erred in denying Second Injury Fund liability, because Richards’ prior injuries constituted a hindrance or obstacle to employment and reemployment, as required for compensation from the Second Injury Fund under section 287.220.1.

In support of Point I, Richards argues that his work routine was changed by his prior injury to his hands. Richards claims that he was initially given splints to wear, which interfered with his ability to perform simple tasks at work, and that Dr. Gunter seriously considered surgery. Richards also claims that his problems worsened and his hands became so painful that he eventually had to resort to surgery in October 2008, because he could not perform his job duties at Hayes Wheels and Stahl’s Manufacturing. Richards further claims that his carpal tunnel syndrome was a hindrance or obstacle to his employment at the Sedalia Steel Company. Richards concludes that there is no substantial evidence from which the Commission could determine that Richards’ preexisting carpal tunnel syndrome did not constitute a hindrance or obstacle to employment or reemployment.

Richards is correct that a threshold issue is whether or not his prior injury constituted a hindrance or obstacle to employment. However, there is an additional threshold issue that disqualifies Richards from compensation. Section 287.220.1 also provides that where the preexisting condition involves a “major extremity,” such as a hand, there must be “a minimum of fifteen percent permanent partial disability.”

In the instant case, Richards only saw Dr. Gunter twice for his carpal tunnel syndrome, and his only treatment was splints and anti-inflammatory medication. Richards was instructed to return to Dr. Gunter if the carpal tunnel syndrome persisted, but Richards never returned after his second appointment. Furthermore, Richards continued to perform repetitive tasks after his subsequent shoulder injury. The only evidence of Richards having a permanent partial disability due to carpal tunnel syndrome at the time of his shoulder injury is the testimony of Dr. Stuck-meyer, who did not examine Richards until after the subsequent shoulder injury. The ALJ and the Commission were free to disregard Dr. Stuckmeyer’s opinion. In fact, the Commission explicitly “[did] not accept the testimony of Dr. Stuckmeyer as credible nor as dispositive of the questions of disability.” Although Richards’ shoulder injury may have caused an obstacle to reemployment, Richards did not meet the threshold of showing that he had at least fifteen percent permanent partial disability in his hands due to carpal tunnel syndrome at the time of his shoulder injury.

Richards argues in his reply brief that the Second Injury Fund has misconstrued the meaning of section 287.220.1 by arguing that Richards had the burden of proving the extent of his carpal tunnel condition at the time of the shoulder injury. Richards claims that section 287.220.1 only requires that the preexisting disability be a hindrance or obstacle to employment or reemployment and that a claimant is only required to show an actual or measurable disability at the time of the second injury. Richards’ argument lacks merit because it contradicts the plain language of section 287.220.1, which provides, in relevant part, that Second Injury Fund liability is established:

If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability!.]

(Emphasis added.)

“The cardinal rule of statutory construction is that the intention of the legislature in enacting the statute must be determined and the statute as a whole should be looked to in construing any part of it.” J.S. v. Beaird, 28 S.W.3d 875, 876 (Mo. banc 2000). “Words are to be given their plain and ordinary meaning wherever possible.” Id. “Each word or phrase in a statute must be given meaning if possible.” State v. Blocker, 133 S.W.3d 502, 504 (Mo. banc 2004).

The plain language of section 287.220.1 clearly indicates that in order to trigger Second Injury Fund Liability, there must be: (1) “a hindrance or obstacle to employment or to obtaining reemployment” and (2) a preexisting permanent partial disability that, “if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability!.]” This completely contradicts Richards’ argument that an employee only has the burden of proving that the preexisting disability is a hindrance or obstacle to employment or to obtaining reemployment. “The employer and insurer, and [c]laimant, are required to offer evidence to support a finding that apportions the percentage of the work-related injury and the percentage of the [preexisting condition].” Messex v. Sachs Elec. Co., 989 S.W.2d 206, 215 (Mo.App. E.D.1999). “The extent or percentage of disability from the preexisting condition must be ascertained if Section 287.220.1 is to be given any meaning.” Id. Lammert v. Vess Beverages, Inc., 968 S.W.2d 720, 725 (Mo.App. E.D.1998), provides that:

In order to compute the total disability compensation to which an employee is entitled from the Second Injury Fund, the Commission must determine not only that a preexisting permanent partial disability existed, but also the degree or percentage of the employee’s disability that is attributable solely to the preexisting condition at the time of the last injury.

Although Dr. Stuckmeyer offered an opinion on the extent of Richards’ disability associated with his wrists, Dr. Stuckmeyer’s examination was performed some four years after the problems first developed. Dr. Stuckmeyer’s opinion was as to the disability at the time he evaluated Richards in January 2003, not “at the time of the last injury.” Additionally, Richards said his wrists became worse between the time of the injury and when he saw Dr. Stuckmeyer. “The Second Injury Fund is not responsible for progression of preexisting conditions!.]” Lammert, 968 S.W.2d at 725. There is simply no evidence establishing the extent of Richards’ carpal tunnel condition “as of the time of the last injury” much less that the condition resulted in a fifteen percent permanent partial disability at the time of the second injury to his shoulder.

Richards also claims' that because the Second Injury Fund offered no impeaching evidence to the percentage of disability opined by Dr. Stuckmeyer, it is impossible to say that based on the entire record, Dr. Stuckmeyer’s opinion is so incredible that the record clearly indicates the threshold was not met. “A determination of what weight [the Commission] will accord expert testimony on matters relating to medical causation lies within the Commission’s sole discretion and cannot be reviewed by [an appellate] [e]ourt.” Aldridge v. S. Mo. Gas Co., 131 S.W.3d 876, 882 (Mo.App. S.D.2004). The commission may disregard witness testimony even where the testimony is not impeached or contradictory evidence is not introduced. Tidwell v. Walker Constr., 151 S.W.3d 127, 133 (Mo.App. S.D.2004).

In the instant case, the Commission was free to disregard Richards’ testimony that his preexisting carpal tunnel condition was a hindrance or obstacle to employment or reemployment and Dr. Stuckmeyer’s opinion about Richards’ disability, even though the testimony was not impeached or contradicted. The weight and credibility of witnesses was within the sole discretion of the Commission and cannot be reviewed on appeal.

Point I is denied.

Point II

Because Point I is dispositive of this appeal we decline to review Point II.

Conclusion

For the foregoing reasons, the decision of the Commission is affirmed.

SPINDEN, P.J., and HOLLIGER, J., concur.

      . Statutory references are to the Revised Statutes of Missouri, 2000.

      . Overruled in part,, on other grounds, by Hampton, 121 S.W.3d at 223, app. at 226.

      . Overruled in part, on other grounds, by Hampton, 121 S.W.3d at 223, app. at 226.


author: PER CURIAM.

text:
    Walter W. WARREN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85775.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 29, 2005.
    Jo Ann Rotermund, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. MacKelprang, Karen Kramer, Jefferson City, MO, for respondent.
    Before: NANNETTE A BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Walter Warren (“Movant”) appeals from the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. In his sole point relied on, Movant argues that the motion court erred when it denied Movant’s post-conviction motion without an evidentiary hearing. Movant claims that he entered the plea only after the plea court advised him that he was entitled to credit for the time he had served while in custody on the charge. Since he did not receive credit for time served, Movant argues that his plea was not voluntary. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).

      . All rule references are to Mo. Rules Crim. P. 2000, unless otherwise indicated.


text:
    Ernest WILLIAMS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85674.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 29, 2005.
    Michelle M. Rivera, St. Louis, MO, for appellant.
    Jeremiah W. (Jáy) Nixon, Atty. Gen., Evan'J. Buchhieim, Victor J. Melenbrink, Jefferson City, MÓ, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Ernest Williams (Williams) appeals the trial court’s judgment, which denied his Rule '29.15 motion for post-conviction relief. The trial court properly found that Williams was not entitled to relief under Rule 29.15. We have reviewed the briefs of the parties and the Record on Appeal, and we find no error of law in this case. No jurisprudential purpose would be served by a written opinion. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b)(2).


text:
    Willie DAVIS, Respondent, v. INTERNATIONAL LIGHTING MANUFACTURING COMPANY, Appellant, and Division Of Employment Security, Respondent.
    No. ED 86154.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 29, 2005.
    Brian S. Weinstock, St. Louis, MO, for appellant.

      Willie Davis, St. Louis, MO, Cynthia A. Quetsch, Ninion S. Riley, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

International Lighting Manufacturing Company (hereinafter, “Employer”) appeals from the Labor and Industrial Relations Commission’s (hereinafter, “the Commission”) decision, affirming the decision by the Appeals Tribunal, awarding Willie Davis (hereinafter, “Employee”) unemployment compensation. Employer claims the Appeals Tribunal erred in determining Employee was discharged for something other than misconduct connected to his work.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The Commission’s decision is affirmed. No precedential or jurisprudential purposes would be served by an opinion restating the detailed facts and the principles of law. We affirm pursuant to Rule 84.16(b).

      . The motion taken with the case is denied.


text:
    James J. SCHMEDEKE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85293.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 29, 2005.
    Deborah B. Wafer, S. Kristina Starke (Public Defenders), St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Jefferson City, MO, for respondent.
    Before: GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant James J. Schmedeke (“Appellant”) appeals from the decision of the trial court, denying Appellant’s Rule 29.15 Motion to Vacate Judgment and Sentence, after a jury convicted him of Driving While Intoxicated, in violation of Section 577.101 RSMo. (2000), and Driving While Revoked, in violation of Section 302.321, in the Circuit Court of St. Charles County.

We have thoroughly reviewed the record and the briefs of the parties, and no error of law appears. Therefore, an opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b)(2).

      . All Statutory references are to RSMo. (2000).


author: MARY K. HOFF, Presiding Judge.

text:
    STATE of Missouri, Plaintiff/Respondent, v. William DAVIS, Defendant/Appellant.
    No. ED 85161.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 29, 2005.
    Irene Earns, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Assistant Attorney General, Jefferson City, MO, for Respondent.
   OPINION

MARY K. HOFF, Presiding Judge.

William Davis (Defendant) appeals from the trial court’s judgment and sentence imposed after a jury found him guilty of trafficking drugs in the second degree, in violation of Section 195.223.3(2), RSMo 2000, possession of a controlled substance, in violation of Section 195.202.2,-and resisting arrest, in violation of Section 575.150. After finding beyond a reasonable doubt that Defendant was a prior and persistent drug offender and a prior and persistent offender, the trial court sentenced Defendant to concurrent terms of ten years for the trafficking conviction, eight years for the possession conviction, and five years for the resisting arrest conviction. We affirm the trial court’s judgment only as to Defendant’s convictions, pursuant to Rule 30.25(b). We reverse the trial court’s judgment only as to the sentences imposed for Defendant’s trafSeking and possession convictions and remand for the imposition of new sentences.

Our review of the record indicates that the trial court’s sentences concerning Defendant’s possession and trafficking convictions do not comply with the mandatory statutory terms. The sufficiency of the sentence may be reviewed on appeal. State v. Chavez, 735 S.W.2d 127, 132 (Mo.App. W.D.1987).

Section 195.285 outlines the sentencing provisions for prior and persistent drug offenders who are found guilty of possession of a controlled substance, in violation of Section 195.202.2. Section 195.285.2 provides that a person found guilty of subsection 2 of Section 195.202 “shall be sentenced to the authorized term of imprisonment for a class A felony if [the trial court] finds the defendant is a persistent drug offender.” The authorized sentence for a class A felony is a term of years not less than ten years and not to exceed thirty years, or life imprisonment. Section 558.011.1(1). Here, the trial court found Defendant to be a prior and persistent drug offender. According to Section 558.011, the authorized punishment for a conviction of a prior and persistent drug offender found guilty of Section 195.202.2 is not less than ten years, yet the trial court sentenced Defendant to only eight years on his possession conviction. Thus, we remand the case to the trial court with instructions to sentence Defendant on this conviction in accordance with the statutory provisions.

With regard to Defendant’s trafficking sentence, Section 195.295 provides that persons found guilty of violating subdivision 2 of subsection 3 of Section 195.223 “shall be sentenced to the authorized term of imprisonment for a class A felony, which shall be served without probation and parole, if the court finds the Defendant is a prior drug offender.” At the sentencing hearing the trial judge stated it found that Defendant was a prior and persistent drug offender “which would indicate the sentences imposed would be without probation or parole.” However, the written judgment and sentence does not reflect that Defendant’s ten-year sentence for trafficking is without probation or parole. The general rule is that an oral pronouncement controls over the written sentence. State v. Lazar, 182 S.W.3d 578, 579-60, 2005 WL 2746521 *2 (Mo.App. E.D. Oct.25, 2005). Here, in its oral pronouncement, the trial court properly indicated that Defendant’s sentences would be served without probation or parole. Because we already are remanding this cause for resentencing on Defendant’s possession count, we likewise direct the trial court to correct its sentence and judgment as to the trafficking count to conform to its oral pronouncement and with the statutory provision.

The judgment is affirmed only as to Defendant’s convictions. We have furnished the parties with a memorandum regarding our resolution of Defendant’s sole point on appeal for their information only and setting forth the reasons for our decision pursuant to Rule 30.25(b). The sentences imposed for trafficking drugs in the second degree and possession of a controlled substance are set aside and the case remanded to the trial court to resen-tence Defendant on those convictions consistent with this opinion.

CLIFFORD H. AHRENS and PATRICIAL. COHEN, JJ., Concur.

      . Subsequent statutory references are to RSMo 2000.


author: JAMES K. PREWITT, Presiding Judge.

text:
    Gary N. SMITH, Petitioner-Respondent, v. DIRECTOR OF REVENUE, Respondent-Appellant.
    No. 26892.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 29, 2005.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Assistant Attorney General, Jefferson City, for Appellant.
    No brief was filed by Respondent.
   JAMES K. PREWITT, Presiding Judge.

Director of Missouri’s Department of Revenue (“Director”) challenges the trial court’s jurisdiction to set aside the revocation of Gary N. Smith’s (“Petitioner”) driving privileges.

Petitioner was pulled over for driving while intoxicated by Morehouse, Missouri police officer Frank Allen. Allen conducted a field sobriety test, which Petitioner failed. During a search incident to arrest, Allen discovered marijuana on Petitioner. Allen took Petitioner to the New Madrid Sheriffs Department and administered a breathalyzer test which indicated a blood alcohol content of .137%. When Allen requested that Petitioner submit to a urinalysis, Petitioner refused. Petitioner’s driving privileges were subsequently revoked for refusal to submit to a chemical test.

On January 11, 2005, Petitioner filed his petition for review of the administrative revocation. In that document, Petitioner stated he was issued notice of the revocation on December 11, 2004. Allen testified that the arrest occurred on December 12, 2004, but he made no reference to issuing a notice. The trial court found that Allen “did not have reasonable and/or probable grounds to believe that [Petitioner] was driving a motor vehicle while under the influence of drugs.” The revocation of Petitioner’s driving privileges was set aside. Director filed Notice of Appeal on March 22, 2005.

In her only point, Director maintains that restoration of Petitioner’s driving privileges was a misapplication of the law in that Petitioner filed his petition for review one day beyond the thirty-day limit provided under § 302.311, RSMo 2000, and the trial court lacked subject matter jurisdiction. As earlier stated, Petitioner alleged in his petition for review that the notice was issued on December 11, 2004. The judgment states the incident occurred on December 12, 2004.

Failure to file a petition for review of an administrative decision within thirty days after notice of revocation deprives the circuit court of subject matter jurisdiction. Welch v. Director of Revenue, 859 S.W.2d 230, 231 (Mo.App.1993). Where judicial tribunals have no jurisdiction to act, their proceedings are absolutely void. Id.

Section 302.311, RSMo 2000 reads, in part: “[I]n the event that a license is suspended or revoked by the director, the ... licensee so aggrieved may appeal to the circuit court of the county of his residence ... for the review of administrative decisions at any time within thirty days after notice that a license is denied or withheld or that a license is suspended or revoked.”

Rule 44.01(a) states that in computing any period of time prescribed or allowed by the applicable statute, the day of the act after which the designated period of time begins to run is not to be included, and “[t]he last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday.”

Depending on the date of the notice, Rule 44.01(a) makes “day one” of the statutory time period either December 12, 2004 or December 13, 2004, and “day thirty” either January 10, 2005 or January 11, 2005. By Executive Order 04-28, Governor Bob Holden ordered that state offices would be closed on January 10, 2005, “for the inauguration.” In a December 8, 2004 Memorandum from the Supreme Court of Missouri, Office of the State Courts Administrator to “Chief Judges, Presiding Judges, Appointing Authorities, Juvenile Officers, and Personnel Officers,” Ghief Justice Ronnie L. White directed the closing of state judicial offices on January 10, 2005.

A “ ‘[l]egal holiday’ is ‘a holiday established by legal authority and characterized by legal restrictions on work and transaction of official business.’” Heinen v. Healthline Mgmt., Inc., 982 S.W.2d 244, 247 (Mo.banc 1998) (quoting Webster’s Third New International Dictionary Unabridged 1290 (1976)). “A ‘legal holiday' includes days when ‘the clerk’s office is legally closed.’ ” Heinen, at 247 (quoting Bowling v. Webb Gas Co., Inc. of Lebanon, 505 S.W.2d 39, 40 (Mo.1974)). “Otherwise, counsel and parties would have to search for clerks, which is not a ‘common-sense requirement or an appropriate solution to the problem.’” Heinen at 247 (quoting Bowling at 40). Heinen involved an authorized closing by the Supreme Court on the day after Thanksgiving.

Here, the memorandum from the Supreme Court made January 10, 2005 a legal holiday. Petitioner had until Tuesday, January 11, 2005 to file his petition. The trial court did not misapply the law, and it had jurisdiction over the administrative decision based on either date that the notice of revocation was issued. Director’s only point has no merit.

The judgment is affirmed.

PARRISH, J., and RAHMEYER, J., concur.

      . Petitioner has not filed a brief with this court. While no penalty is prescribed for failure to file a brief, we are required to decide the case without the benefit of Petitioner's argument in response to Director's claim of error. Ruth v. Director of Revenue, 143 S.W.3d 741, 747 n. 4 (Mo.App.2004).

      . If there is a conflict between the Supreme Court’s rules and a statute, the rule always prevails if it addresses practice, procedure or pleadings. State ex rel. Union Electric Co. v. Barnes, 893 S.W.2d 804, 805 (Mo.banc 1995).

      . "Subject to the supervisory authority of this Court, the Chief Justice — as chief administrative officer of the judicial system — supervises the administration of all Missouri courts. Mo. Const, art. V, sec. 8.” Heinen, infra.


text:
    Scott BARMORE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85961.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 29, 2005.
    Shari Kay Grueninger, St. Louis, MO, for appellant.
    Deborah Daniels, Evan J. Buchheim, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Scott Barmore (hereinafter, “Movant”) appeals from the trial court’s judgment denying his Rule 29.15 post-conviction motion after an evidentiary hearing. Movant was convicted of one count of robbery in the first degree, Section 569.020 RSMo (2000). Movant was sentenced to serve thirty years’ imprisonment as a prior and persistent offender. This Court affirmed Movant’s conviction. State v. Barmore, 87 S.W.3d 888 (Mo.App. E.D.2002).

Movant raises two points on appeal. First, Movant argues the motion court clearly erred in denying his allegations of ineffective assistance of counsel after an evidentiary hearing in that the motion court failed to make credibility determinations about allegations contained in a potential alibi witness’ affidavit. Second, Movant claims his trial counsel was ineffective for failing to investigate the potential alibi witness’ allegations of police misconduct.

We have reviewed the briefs of the parties, the legal file, and the transcript and find the motion’s court decision was not clearly erroneous. White v. State, 939 S.W.2d 887, 904 (Mo. banc 1997); Rule 29.15(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    FIDELITY NATIONAL TITLE INSURANCE COMPANY, Plaintiff/Respondent, v. William TURNER, Defendant/Appellant, v. Netco, Inc., Third-Party Defendant/Respondent.
    No. ED 85947.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 29, 2005.
    Raymond Howard Jr., St. Loras, MO, for appellant.
    Adam Ronald Lorenz, Clayton, MO, for Fidelity National Title Insurance Company.
    Dennis Robert Chassaniol II, St. Charles, MO, for NETCO, Inc.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

William Turner (Appellant) appeals from the summary judgments entered by the trial court in favor of Fidelity National Title Insurance Company and NETCO, Inc. (collectively Respondents). We have reviewed the briefs of the parties and the record on appeal and conclude that there are no issues of material fact and Respondents were entitled to judgment as a matter of law. An extended opinion would have no precedential value. We have, however, provided ,a memorandum setting forth the reasons for-our decision to the parties for their use only. We affirm the judgments pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Anthony K. GAITHER, Defendant/Appellant.
    No. ED 85526.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 29, 2005.
    Maleaner Ryna Harvey, St. Louis, MO, for appellant.
    Deborah Daniels, Karen Louis Kramer — co-counsel, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Anthony K. Gaither appeals from the judgment of the trial court entered after a jury verdict finding him guilty of possession of a -controlled substance, in violation of Section 195.202 RSMo 2000. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not err, plainly or otherwise. An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the .judgment pursuant to Missouri Rule of Civil Procedure 30.25(b).


text:
    STATE of Missouri, Respondent, v. Michael ISOM, Appellant.
    No. ED 85493.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 29, 2005.
    Tonya McAlpine, St. Louis, MO, for appellant.
    Sarah McLean, Asst. Atty. Gen., Kansas City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Michael Isom appeals from a judgment of the Circuit Court of the City of St. Louis granting the State of Missouri, Department of Social Services, Family Support Division’s, Motion to Dismiss for Failure to Exhaust Administrative Remedies and dismissing Mr. Isom’s Motion to Set Aside Administrative Decision/Order, Motion for Temporary Restraining Order, and Motion for Reimbursement of Sums Paid to the Division of Child Support Enforcement. In his appeal, Mr. Isom contends that the trial court erred in its determination that the court lacked subject matter jurisdiction over the matter.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. We affirm the award pursuant to Rule 84.16(b).


text:
    Rodney McALLISTER, Sr., Appellant, v. Mischelle RODGERS, Respondent.
    No. ED 86107.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 29, 2005.
    Jerryl Thomas Christmas, St. Louis, MO, for appellant.
    Amber L. Kempf, St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Rodney McAllister, Sr. appeals the trial court’s grant of summary judgment in favor of Mischelle Rodgers. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


author: GLENN A. NORTON, Chief Judge.

text:
    Denise MARTIN, Claimant/Appellant, v. NATIONAL LINEN UNIFORM CO., and Division of Employment Security, Respondents.
    No. ED 86871.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 29, 2005.

      Cynthia A. Quetseh, Jefferson City, MO, for respondent.
    Denise Martin, St. Louis, MO, appellant acting pro se.
    National Linen & Uniform Co., LLC, Doraville, GA, respondent acting pro se.
   GLENN A. NORTON, Chief Judge.

Denise Martin (Claimant) appeals from the decision of the Labor and Industrial Relations Commission denying her unemployment benefits. Because this Court is without jurisdiction, the appeal is dismissed.

A deputy from the Division of Employment Security determined that Claimant was disqualified from receiving unemployment benefits because she was discharged from work for misconduct connected with her work. Claimant appealed to the Appeals Tribunal, which dismissed her appeal. Claimant then filed an application for review with the Commission, which affirmed the Appeals Tribunal’s decision on July 22, 2005. Claimant filed a notice of appeal to this Court on August 23, 2005.

The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. A claimant then has twenty days to appeal the Commission’s final decision. Section 288.210, RSMo 2000. Here, the Secretary for the Commission mailed its decision to Claimant on July 22, 2005. The decision became final ten days later and Claimant’s notice of appeal was due on August 22, 2005. Section 288.200.2; Section 288.210. Claimant filed her notice of appeal on August 23, 2005, which is untimely.

This Court has a duty to examine its jurisdiction sua sponte. Crowden v. General Sign Co., 133 S.W.3d 562, 562 (Mo.App. E.D.2004). We issued an order directing Claimant to show cause why her appeal should not be dismissed. Claimant has not filed a response to the order. Section 288.210 makes no provision for late filing of a notice of appeal. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Loeffler v. Shop N Save, 121 S.W.3d 261, 261 (Mo.App.E.D.2003).

Claimant’s appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ., concur.


author: PATRICIA L. COHEN, Judge.

text:
    STATE of Missouri, Respondent, v. Wilbert HUNTER, Appellant.
    No. ED 85151.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 29, 2005.

      Craig A. Johnston, Assistant Public Defender, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Wilbert Hunter (“Defendant”) appeals from a judgment of the Circuit Court of City of St. Louis entered after a jury convicted him of burglary in the second degree, felony stealing over $500, and felony resisting arrest. In his appeal, Defendant contends that the trial court erred in: (1) overruling his motion for judgment of acquittal at the close of the evidence with respect to the charge of felony resisting arrest; and (2) limiting questioning during voir dire. We affirm in part and reverse in part.

Statement of the Facts and Proceedings Below

Viewed in the light most favorable to the verdict, the evidence adduced at trial establishes that, around 4:00 a.m. on February 10, 2003, two citizens witnessed a break-in at the Cigarettes for Less on Chippewa in St. Louis, Missouri. The witnesses saw two African-American men wearing hooded sweatshirts break a window and enter the store. When the men exited the store, they carried boxes of cigarettes and left in a red pickup truck with a silver metal toolbox. The pick-up truck headed east on Chippewa. Immediately thereafter, the witnesses separately called 911 to report the incident.

Officer Robert Farrow responded to the dispatched call. As Officer Farrow traveled west on Chippewa, he spotted a red pick-up truck matching the dispatcher’s description driving in the opposite direction. Officer Farrow noticed two African-American men inside the pickup, one of whom was wearing a “puffy” jacket and a black stocking cap. Officer Farrow made an immediate U-turn and stopped at a stoplight behind the pick-up truck. As he waited at the intersection for the traffic light to change, Officer Farrow activated his patrol car’s spotlight. As soon as Officer Farrow activated his spotlight, the pick-up truck drove through the red light. Officer Farrow turned on his roof lights and began to follow the pick-up truck. Although Officer Farrow momentarily lost sight of the pick-up truck, he shortly thereafter located the truck abandoned on a lawn.

When Officer Farrow approached the pick-up, he spotted two sets of fresh footprints in the snow adjacent to the truck. Although the cab was empty, Officer Farrow found a black down jacket and a black knit cap. In the bed of the pick-up, Officer Farrow found a plastic liner for a trash can, 62 cartons of cigarettes, 31 loose packs of cigarettes, 102 lighters and a roofer’s hammer mounted on a pipe.

Officer Farrow requested backup, to assist him in searching for the occupants of the pick-up truck. Officer James Siebum and his police dog, Glyss, responded to the call. Upon arriving at the scene, Officer Siebum noticed that the footprints suddenly stopped near vehicles parked down the street. Glyss pulled on his lead as he was trying to get under the vehicles. Officer Siebum announced twice that he was a police officer and that he had a canine with him. Following his second announcement, Officer Siebum released Glyss’s lead and Glyss went under a truck and pulled out ..Defendant. Officer Siebum placed Defendant under arrest.

Officer Siebum and Glyss returned to the abandoned pick-up truck and followed the second set of footprints to a shed on another street. Again, Officer Siebum announced that he was a police officer and that he had a canine assisting him. Hearing no response, Officer Siebum released Glyss who jumped through á broken window and apprehended Defendant’s accomplice by biting him on the hand.

Police transported Defendant and his accomplice to the police station for questioning. Defendant claimed that he did not know anything about the burglary or where the cigarettes came from. Defendant explained that a friend picked him up, informed him that the truck was stolen and asked for help stealing a moped. • Defendant also stated that he fell asleep and when he awoke, a police car was following the pick-up truck. Finally, Defendant asserted that he only ran because his friend ran and he did not want to get caught by the police.

The State charged Defendant, as a prior and persistent offender, with second degree burglary, stealing, resisting arrest and possession of burglar’s tools. Following the presentation of evidence at trial, a jury found Defendant guilty of second degree burglary, felony stealing and felony resisting arrest. The trial court sentenced Defendant to concurrent terms of ten years for second degree burglary, five years for felony stealing and one year for felony resisting arrest. This appeal followed.

Discussion

A. Sufficiency of the Evidence

In his first point, Defendant claims that the trial court erred when it denied his Motion for Judgment of Acquittal at the close of all evidence with respect to the charge of felony resisting arrest. Specifically, Defendant asserts that there was insufficient evidence that Officer Farrow was making an arrest of Defendant and that Defendant reasonably should have known that he was being arrested for burglary. Notably, the State concedes that, under the facts and circumstances of this case, the trial court erred in entering a verdict on the felony resisting arrest charge and the evidence at trial was only sufficient to show misdemeanor resisting arrest.

We will affirm a trial court’s denial of a motion for judgment of acquittal if, at the close of evidence, there was sufficient evidence from which reasonable persons could have found the defendant guilty of the charged offense. State v. Small, 873 S.W.2d 895, 896 (Mo.App. E.D.1994). ‘When reviewing the sufficiency of the evidence, we review all evidence and inferences reasonably drawn from the evidence in the light most favorable to the verdict, and disregard all contrary evidence and inferences.” State v. Berry, 54 S.W.3d 668, 675 (Mo.App. E.D.2001).

Pursuant to Section 575.150, a person commits the crime of resisting or interfering with arrest, detention or stop if:

knowing that a law enforcement officer is making an arrest, or attempting to lawfully detain or stop an individual or vehicle, or the person reasonably should know that a law enforcement officer is making an arrest or attempting to lawfully detain or lawfully stop an individual or vehicle, for the purpose of preventing the officer from effecting the arrest, stop or detention, the person:
(1) Resists the arrest, stop or detention of such person by using or threatening the use of violence or physical force or by fleeing from such officer; or
(2) Interferes with the arrest, stop or detention of another person by using or threatening the use of violence, physical force or physical interference.
... Resisting or interfering with an arrest for a felony is a class D felony. Resisting an arrest by fleeing in such a manner that the person fleeing creates a substantial risk of serious physical injury or death to any person is a class D felony; otherwise, resisting or interfering with an arrest, detention or stop is a class A misdemeanor.

Section 575.150.

It is well-established that “the gravamen of the offense is resisting an arrest, not flight from a law enforcement officer [and] the offense of resisting arrest cannot occur unless a law enforcement officer actually contemplates an arrest.” State v. Long, 802 S.W.2d 573, 575-76 (Mo.App. S.D.1991). Here, the record does not contain sufficient facts from which reasonable jurors could have found that Defendant was fleeing from Officer Farrow, that Officer Farrow was arresting Defendant or even that Officer Farrow was contemplating Defendant’s arrest. Indeed, the facts merely show that Officer Farrow stopped his patrol car at a stoplight behind a pickup truck matching the dispatcher’s description and shined a spotlight into the truck. The record reveals that as soon as Officer Farrow activated his spotlight, the driver of the pick-up truck drove through the red light prompting Officer Farrow to activate his roof lights and follow the pickup truck. The record does not contain proof that Defendant reasonably should have known that, when he saw a police car following a pick-up in which he was a passenger, he was being arrested for felony burglary. Moreover, Officer Farrow never testified that when he turned on his patrol lights and followed the pick-up, he intended to arrest Defendant for burglary. As a result, we agree that the record contains insufficient evidence to support Defendant’s felony resisting arrest conviction.

The State argues that in light of the insufficient evidence to support Defendant’s felony resisting arrest conviction, we should reverse this aspect of the judgment and remand to the trial court with an order directing the trial court to enter a verdict for misdemeanor resisting arrest and re-sentence Defendant accordingly. Candidly, the State acknowledges that we discussed this precise issue, and reached the opposite conclusion, in State v. Brooks, 158 S.W.3d 841 (Mo.App. E.D.2005), Defendant’s accomplice’s appeal.

In both this case and Brooks, the State argued that, pursuant to State v. Dooley, 919 S.W.2d 539, 542 (Mo.App. E.D.1995), where a conviction of a greater offense has been overturned for insufficiency of the evidence, we may enter a conviction for a lesser offense if the evidence was sufficient for the jury to find each of the elements and the jury was required to find those elements to enter the ill-fated conviction on the greater offense. As we held in Brooks, however, this rule is inapplicable where, as here, the jury was not required to find all of the elements of misdemeanor resisting arrest in order to convict Defendant of felony resisting arrest. See Brooks, 158 S.W.3d at 852. Thus, as in Brooks, we decline to enter a conviction for misdemeanor resisting arrest. Point granted.

B. Voir Dire

In his second point, Defendant asserts that the trial court erred when it precluded him from asking whether prospective jurors owned a dog that had bitten a person, how the prospective juror would react if bitten by a police dog, and what prospective jurors thought about the use of police dogs to make arrests. Defendant contends that by limiting this line of questioning, the court prevented him from determining if prospective jurors held any preconceived notions, prejudices or biases which would preclude them from fully considering Defendant’s theory of the case.

As an initial matter, we note that the purpose of voir dire is to allow for the selection of a fair and impartial jury through the unveiling of prospective jurors’ biases or prejudices. State v. Leisure, 749 S.W.2d 366, 373 (Mo.banc 1988). As a result, “a liberal latitude is allowed in the examination of jurors.” State v. Clark, 981 S.W.2d 143, 146 (Mo.banc 1998) quoting State v. Granberry, 484 S.W.2d 295, 299 (Mo.banc 1972). The trial judge is in the best position to determine whether questions raised in voir dire assure the presence of a fair and impartial jury without amounting to a prejudicial presentation of the evidence. Leisure, 749 S.W.2d at 373. Accordingly, we review a trial court’s decision to disallow certain questions during voir dire for abuse of discretion. Clark, 981 S.W.2d at 146. “The party-asserting abuse has the burden of demonstrating a real probability that he was thereby prejudiced.” State v. Kreutzer, 928 S.W.2d 854, 861 (Mo.banc 1996).

The record does not support Defendant’s assertion that the trial court imposed any unreasonable limitations on the scope of voir dire that caused him prejudice or prevented him from determining if prospective jurors held any preconceived notions, prejudices or biases about his theory of the case, assuming his theory of the case had something to do with police dogs. To the contrary, the record reveals that during voir dire both the State and the Defendant discussed the use of police dogs to assist in arrest. During the State’s voir dire, the prosecutor asked the jury, “Now, I want to know if you were to hear that a police dog bit a suspect would that create any — maybe more sympathy towards the defendant in this case?” The trial court clarified, “You mean to the point where they couldn’t follow the Court’s instructions, is that what you’re asking?” The prosecutor replied, “Or would that create maybe some bias against the State?” A number of. prospective jurors responded, “No.”

When the prosecutor asked one panel member if the fact that a police dog bit a suspect would affect his decision at all, he responded “No.” Another prospective juror asked whether the “dog bit him just to bite him” or whether the “dog was doing his job.” This prospective juror later said it would not affect her if the dog was doing its job. The prosecutor then asked the entire panel, “Is there anybody here that thinks that might create some bias if they were to hear that the police dog bit the defendant?”

The record indicates that the trial court allowed defense counsel to further explore prospective jurors’ feelings on the use of police dogs. To that end, defense counsel asked the panel whether anyone had ever “dealt with a police dog before.” Likewise, the trial court gave defense counsel latitude during voir dire to further question the prospective juror who told the prosecutor that she would not be affected by the fact that a police dog bit a suspect as long as the dog was doing a job when it bit a suspect. During defense counsel’s inquiry, this prospective juror explained that she felt differently about a situation where the suspect acted inappropriately and thereby provoked the dog versus a situation where the police used the dog in an abusive and unnecessary way. Accordingly, the record does not support Defendant’s assertion that his voir dire was so limited that it prevented him from discovering any preconceived notions, prejudices or biases prospective jurors may have had regarding the use of police dogs. Point denied.

Conclusion

Defendant’s conviction for felony resisting arrest is reversed and the corresponding sentence is vacated. The judgment of the trial court is affirmed in all other respects.

MARY K. HOFF, P.J., and CLIFFORD H. AHRENS, J., Concur.

      . All statutory references are to RSMo 2000, unless otherwise noted.

      . The possession of burglar's tools count was severed and later nolle prosequied.

      . However, where, as here, an appellant fails to properly preserve an issue for appeal, appellate review is discretionary and only for plain error. State v. Stewart, 17 S.W.3d 162, 166 (Mo.App. E.D.2000). To warrant relief under this standard, appellant must establish a manifest injustice or a miscarriage of justice. State v. Dudley, 51 S.W.3d 44, 53 (Mo.App. W.D.2001).

      . We are equally unpersuaded by Defendant’s contention that he suffered prejudice as a result of the trial court's decision to thwart defense counsel’s attempt to expand voir dire into irrelevant areas, namely the temperament of prospective jurors' household pets. We fail to perceive in what respect prospective juror attitudes towards pet dogs bear in any way on Defendant’s defense. More importantly, we do not agree that Defendant was prejudiced by the trial court's limitation of questioning about pet dogs.


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    In re the MARRIAGE OF Sheila Darlene ELLIOTT and Robert Earl Elliott. Sheila Darlene Elliott, Petitioner-Appellant, v. Robert Earl Elliott, Respondent-Respondent, and Mary Elliott and Mary Elliott as Trustee of the Mary Elliott Revocable Trust, Respondents.
    No. 26389.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 29, 2005.

      John R. Briggs, Law Offices of Sotta and Crane, P.C., Joplin, for appellant.
    Susan S. Jensen, Pratt, Fossard, Jensen & Masters, L.L.C., Springfield, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Sheila Darlene Elliott (“Wife”) appeals from a judgment dissolving her marriage to Robert Earl Elliott (“Husband”). She contends that the trial court erred in finding that there was a bona fide debt owing to Mary Elliott, (“Mary”), Husband’s mother; in factoring that debt into the division of property, which she claims resulted in Husband actually receiving a disproportionate percentage of property; and in finding that Wife’s signature was not forged on a warranty deed conveying part of the marital estate to Mary. She also contends that the trial court erroneously failed to designate whether some property distributed by the trial court was marital or nonmarital.

The parties were married on October 30, 1985, and separated on November 26, 2001. Wife worked as a licensed practical nurse prior to their son’s birth. From the time of his birth until he started school, Wife occasionally helped Husband run a concession stand, and did some work at his car lot. Although Wife had intermittently taken some courses, it was not until after their son started school that she concentrated on earning her registered nurses license. She then worked as a nurse thirty to forty hours per week.

During the marriage Husband worked as a real estate agent and owned rental property, a used car lot and a bail bonding company. In addition, the family owned several pieces of real estate. Generally, Husband was responsible for managing the family’s finances and Wife was responsible for maintaining the household. Husband and Wife kept separate bank accounts and Wife was generally not apprised of Husband’s businesses or his real estate transactions, however, from time to time she was asked to sign documents pertaining to real estate.

By December 2001, Husband’s businesses had begun to falter and he did not have the funds to operate them or pay the family’s bills. He found himself with increasing debt under a line of credit loan from a local bank in the amount of $150,000, various credit card balances and the taxes on the family’s real estate holdings. Mary agreed to pay off these debts totaling approximately $269,000 in exchange for five tracts of land, which were conveyed to her by the warranty deed in question here. In addition, from the time Husband’s businesses began to falter and continuing until the dissolution hearing, Mary gave Husband money to cover all of his expenses, totaling approximately $150,236.

On December 13, 2001, Wife filed a petition to dissolve the marriage and she was later permitted to join Mary as a necessary party. She also filed an amended petition seeking to set aside the warranty deed to Mary conveying what she claimed was a substantial portion of the marital estate, based on her contention that her signature had been forged. The trial court heard evidence on the amended petition for dissolution of the marriage and entered its judgment in which it, inter alia, dissolved the marriage, distributed the property and debts and held against Wife on her claim to set aside the warranty deed. In connection with the distribution of property the trial court found that there was a bona fide debt to Mary in the amount of $150,236 and it distributed it to Husband. Wife filed a motion to reconsider or for new trial, which the trial court overruled. This appeal followed.

Our review of a dissolution of marriage judgment follows the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). A dissolution decree will be affirmed unless there is no substantial evidence to support it; it is against the weight of the evidence; or it erroneously declares or applies the law. Gryder v. Gryder, 129 S.W.3d 467, 470 (Mo.App. S.D.2004). We view the evidence in .the light most favorable to the dissolution decree. Petties v. Petties, 129 S.W.3d 901, 905 (Mo.App. W.D.2004). It is for the trial court to determine the weight and value to be given to the witnesses. Id.

Wife’s first two points are interrelated. Essentially, she argues that the payments from Mary totaling $150,236 did not constitute a bona fide loan to be attributed to the marriage, and because the trial court used this alleged loan in equalizing the distribution of marital property its division of the net marital estate was inequitable. In this regard she contends that Husband received seventy-two percent of what she characterizes as marital property versus twenty-eight percent awarded to her. She notes that by deducting $150,236 assigned to Husband as a debt to Mary, the net estate allocated to Husband was reduced to $64,524 versus $61,593.14 for her.

“[T]he existence of a loan is ‘heavily dependent on the trial court’s determination of the credibility of the witnesses.’ ” Gryder, 129 S.W.3d at 472 (quoting Panettiere v. Panettiere, 945 S.W.2d 533, 543 (Mo.App. W.D.1997)). Husband testified that he owes Mary $150,236. The trial court received copies of checks written by Mary to Husband, or on his behalf, totaling $140,736 and there was testimony that there were additional payments which, according to Husband, amounted to a total of $150,236 he owed to Mary. Mary testified that these payments were not intended as gifts and that her accountant was developing a repayment plan. Whether these payments were a bona fide loan was a question of fact, depending on the trial court’s judgment as to the credibility of the witnesses. See Panettiere, 945 S.W.2d at 543. Based upon the record before us, the trial court’s determination that there was a bona fide debt of $150,236 owed to Mary was supported by the evidence.

Wife also contends that it was error for the trial court to use this debt in dividing the marital estate. Section 452.330 does not define what constitutes marital debt. However, courts have applied the same principles that govern the classification of property to the classification of debt, and as a result all debt incurred by the parties after the commencement of the marriage is generally considered marital debt. Rawlings v. Rawlings, 36 S.W.3d 795, 798 (Mo.App. W.D.2001); see also Wright v. Wright, 1 S.W.3d 52, 60 (Mo.App. W.D.1999). Section 452.330.1 requires that “marital debts be divided along the same principles as marital property is divided.” Petties, 129 S.W.3d at 911. A trial court has broad discretion to determine how debt acquired during a marriage is to be allocated. Schlotman v. Schlotman, 126 S.W.3d 425, 430 (Mo.App. W.D.2004) Absent a clear showing of an abuse of discretion we will not alter the trial court’s division. Id.

“If reasonable persons can differ about the propriety of the trial court’s action, it cannot be said that the trial court abused its discretion.” Wright, 1 S.W.3d at 57 (quoting In re Marriage of Collins, 875 S.W.2d 643, 647 (Mo.App. S.D.1994)). According to the record Mary furnished all of the $150,236 payments to Husband prior to the trial and the dissolution decree. There was also evidence that Husband used these funds to support their son, pay the family’s bills and satisfy the obligations of his businesses between the time that Wife moved out and the dissolution judgment was entered. Furthermore, the trial court heard testimony that the need for the loan from Mary was precipitated, in part, by Wife’s failure to contribute funds to pay family expenses. Although, the trial court’s finding that there was a bona fide loan attributable to the marriage was supported by the evidence, we are unable to determine if its decision to assign it to Husband in the trial court’s division of the marital estate was erroneous. This is because, as will be seen in our discussion of Point IV, we are unable to determine how the trial court classified some of the property dealt with in the judgment. See Oetterer v. Oetterer, 60 S.W.3d 48, 52 (Mo.App. E.D.2001) (holding that specific findings as to the classification of property are necessary to determine whether a division of property and debt is fair and equitable). The portion of the point concerning whether there was a debt to Mary attributable to the marriage is denied. We do not decide that portion of the point relating to whether the debt was appropriately used to equalize the property division because of our conclusion concerning Wife’s Point IV.

In Point III, Wife contends that the trial court erred in denying Count II of her amended petition for dissolution, which alleged that the marital estate had been depleted by a fraudulent conveyance of marital property to Mary. This is a factual determination and we defer to the trial court’s findings because it is in a better position to judge the credibility of the witnesses. See Taylor v. Clark, 140 S.W.3d 242, 251 (Mo.App. S.D.2004).

Wife claims that she never signed the warranty deed conveying the real estate at issue to Mary, and she so testified. She relied on expert testimony to show that her name, as it appeared on the deed, was not in her handwriting. However, during oral argument on Wife’s motion for a new trial, the trial court stated clearly that it did not believe her expert’s’ testimony. Husband identified Wife’s signature on the deed and testified that he was present when she signed it. In addition, Sheila Easton, a supervisor at Neosho Savings and Loan, testified that she witnessed both Husband and Wife sign the deed which she notarized on March 28, 2001. Therefore, we defer to the trial court’s finding that Wife signed the warranty deed in question. Wife’s Point III is denied.

In Point IV, Wife contends that the trial court erroneously failed to designate whether some property distributed by the court was marital or nonmarital. Because we are unable to determine whether the court classified certain items of property as marital or nonmarital, we must reverse the portion of the judgment dividing the property and remand for further proceedings.

The trial court must set aside the nonmarital property of the parties and divide the marital assets based upon all the relevant factors as provided in Section 452.330. In re Marriage of Kirkham, 935 S.W.2d 392, 393 (Mo.App. S.D.1996). In order for us to provide meaningful appellate review of the trial court’s division of marital property, we must be able to ascertain which assets the court considered to be part of the marital estate. See MacBeth v. MacBeth, 622 S.W.2d 720, 723 (Mo.App. E.D.1981). “Specific findings on whether assets are marital or separate property are a ‘necessary antecedent of a subsequent just division of marital property.’.” Oetterer, 60 S.W.3d at 52 (quoting In re Marriage of Below, 8 S.W.3d 233, 235 (Mo.App. E.D.1999)).

In this case, the trial court categorized some items as nonmarital. Husband argues that because the trial court expressly found some property to be nonmarital, we should infer that all other property not so categorized was deemed marital property. See Bishop v. Bishop, 658 S.W.2d 512, 515 (Mo.App. E.D.1983). This dissolution decree does not lend itself to that interpretation because the trial court categorized one of the remaining items of property as marital but made no designation as to the rest.

The trial court listed all of the household furnishings and personal possessions as marital or nonmarital. The trial court did list five items of real estate as nonmarital, but characterized one of the remaining parcels of real estate as marital. With regard to the remaining parcels of real estate however, the trial court disposed of them by simply naming the party to whom the item would pass without indicating whether it was awarded through the division of the marital estate or whether the party was retaining it as nonmarital property. Based upon this inconsistency in the judgment, we cannot infer that all property not described as nonmarital was determined to be marital property by the trial court.

Section 452.330 directs courts to set aside nonmarital property and divide marital property. This statute has been interpreted to mandate findings by the trial court as to what property was considered nonmarital and what property was considered marital. Oetterer, 60 S.W.3d at 52. The trial court did not completely do so in this case. This failure leaves us unable to decide Wife’s claim that the allocation of the marital estate was unjust. As a result, we are constrained to grant Wife’s Point IV. Accordingly, the portion of the judgment relating to the division of property, including the debt to Mary, is reversed and the case is remanded for further proceedings consistent with this opinion.

PREWITT and RAHMEYER, JJ„ concur.

      . Murphy interpreted the provisions of Rule 73.01(c). The provisions of that rule now appear in essentially the same form in Rule 84.13(d), Missouri Rules of Civil Procedure (2004).

      . Apparently Wife arrives at these numbers by adding the value of that property she determined was awarded to both her and Husband as nonmarital to the net value of what she considers was the marital estate that each of them received under the dissolution decree.

      . All statutory references are to RSMo (2000) unless otherwise indicated.

      . Wife argues that it is not mandatory for trial courts to distribute marital debt in the same manner as marital property, citing Golleher v. Golleher, 697 S.W.2d 547, 549 (Mo.App. E.D.1985). That case preceded a 1998 amendment to Section 452.330.1 mandating that courts divide both marital property and marital debts "in such proportions as the court deems just after considering all the relevant factors,” including those specifically identified therein. See Petties, 129 S.W.3d at 911.

      . Six items of real estate were awarded without the court describing whether they were marital or non-marital. Furthermore, none of the automobiles, investment accounts, businesses, individual stock holdings or promissory notes were described as marital or non-marital.


author: PHILLIP R. GARRISON, Judge.

text:
    David Gregory ORR, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26719.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 30, 2005.

      Margaret M. Johnston, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, for respondent.
   PHILLIP R. GARRISON, Judge.

David Gregory Orr (“Movant”) was sentenced to concurrent sentences of twenty years and ten years after pleading guilty to first degree assault with serious physical injury, Section 565.050, and armed criminal action, Section 571.015. Movant filed a pro se motion to vacate, set aside or correct the judgment and sentence pursuant to Rule 24.035, and thereafter appointed counsel filed an amended motion alleging, inter alia, that the trial court violated Rule 24.02(e) by not determining that a factual basis existed for the guilty plea as to first degree assault. Relief was denied by the motion court after an evidentiary hearing. This appeal followed.

Appellate review of a denial of a Rule 24.035 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k); Price v. State, 137 S.W.3d 538, 540 (Mo.App. S.D.2004). The motion court’s findings of fact and conclusions of law are clearly erroneous if, after a review of the entire record, this court is left with a definite and firm impression that a mistake has been made. Id. In making its review, the court focuses on whether the plea was made knowingly, voluntarily, and intelligently. Id.

In his sole point on appeal, Movant contends that the motion court erred in denying his Rule 24.035 motion because, contrary to Rule 24.02(e), the trial court entered judgment on his plea of guilty to the charge of assault in the first degree without a factual basis for the element of serious physical injury having been demonstrated. We disagree and affirm the judgment.

Rule 24.02(e) provides that “[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.” “Rule 24.02(e) is not constitutionally based; rather, its purpose is to aid in the constitutionally required determination that a defendant enter his or her plea of guilty intelligently and voluntarily.” Price, 137 S.W.3d at 541. The Rule is designed to protect an accused who may appear to be pleading voluntarily and with an understanding of the nature of the charge, but who does so without realizing that his conduct does not actually fall within the charge. Id. at 541-542. The need for this protection requires courts to reject a guilty plea if the facts do not establish the offense. Id. at 542. Whatever its source, the factual basis must appear clearly on the record. Id.

“A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.” Section 565.050.1. The offense is elevated to a class A felony when serious physical injury is inflicted on the victim. Section 565.050.2. Serious physical injury is defined as “physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” Section 565.002(6).

Movant was charged with knowingly causing serious physical injury to Gary Putnam (“Putnam”) by stabbing him repeatedly. He argues on this appeal that there was no evidence that the injuries suffered by Putnam “created a substantial risk of death or a protracted loss or impairment of the function of any part of his body.” The record, however, belies this contention.

At the plea hearing, Movant stated that he had ample time to discuss the charges and the punishment that could be assessed on each count with his attorney and that he wanted the court to accept his plea. At the request of the plea court, the prosecutor outlined the facts as follows:

Judge, as to the charge of assault in the first degree, [Movant], on that day, January 19, 2001, stabbed [Putnam] in the chest at his home in Dexter, Missouri resulting in serious physical injury to [Putnam] and requiring his hospitalization and did so with a knife in stabbing him.
As to count — as to the charge of armed criminal action, Judge, of course, first of all, we have realleged all the allegations in the charge of assault in the first degree consisting of [Movant] stabbing [Putnam] in his home on January 19th, 2001. The stabbing resulted in serious physical injury requiring the hospitalization of [Putnam],
In addition, Your Honor, [Movant] committed the crime of assault in the first degree by stabbing [Putnam] by, through and with the use of a dangerous instrument, the dangerous instrument, of course, being the knife with which he stabbed [Putnam],

Movant confirmed to the plea court that the facts outlined by the State were true.

At the sentencing hearing, the court was presented with a presentence investigation that included a victim’s impact statement that stated:

... [Putnam] was stabbed at least six times in the chest, stomach, head and back areas. He was also shot at. [Putnam] stated that he still suffers physically from arthritis in his shoulder from one of the stab wounds. He also has nerve damage in his chest from another stab wound. He was in the hospital approximately five days and suffered a punctured lung. At the time of the assault on [Putnam] he was recovering from colon cancer and was very weak.... Psychologically, [Putnam] stated that he does not feel secure in his home anymore. He suffers from nightmares about the attack as well.

There was also testimony presented at the sentencing hearing that Putnam had scarring, had been through a lot of pain, had arthritis in his shoulder where he was stabbed in the back, he was stabbed in the lungs, and had to move from his home because of what occurred there.

The record before the plea court was clearly sufficient to establish a factual basis that the injuries inflicted on Putnam created a substantial risk of death or caused serious disfigurement or protracted loss or impairment of the function of parts of his body. The consequences of these injuries were magnified in this case because Putnam was in a weakened condition because he was recovering from colon cancer. It defies logic to suggest that stabbing someone multiple times in various areas of the body, including a wound to the lungs, would cause anything less than serious physical injuries. See Johnson v. State, 115 S.W.3d 422, 425-26 (Mo.App. W.D.2003). As stated by the court there, the “facts spoke for themselves.” Id. at 426.

We also note that the injuries described in this case are of the type found to constitute serious physical injury in other cases. See State v. Daniel, 103 S.W.3d 822, 827-28 (Mo.App. W.D.2003) (broken jaw requiring hospitalization for five days and wiring of jaw for three weeks); State v. Carpenter, 72 S.W.3d 281, 283-84 (Mo.App. S.D.2002) (cut running length of victim’s face); State v. Bruce, 53 S.W.3d 195, 200 (Mo.App. W.D.2001) (four cuts on victim’s hand resulting in nerve damage); State v. Lanier, 985 S.W.2d 377, 379-80 (Mo.App. E.D.1999) (arthritis in leg resulting from gunshot wound) overruled on other grounds, State v. Driver, 912 S.W.2d 52, 55 (Mo. banc 1995); State v. Pendleton, 860 S.W.2d 807, 811-12 (Mo.App. E.D.1993) (gunshot wound to chest); State v. Baker, 859 S.W.2d 805, 812-13 (Mo.App. E.D.1993) (stiffness in shoulder following gunshot wound); State v. Pettis, 748 S.W.2d 793, 794 (Mo.App. E.D.1988) (four inch permanent scar); State v. Briggs, 740 S.W.2d 399, 401 (Mo.App. E.D.1987) (cracked rib resulting in missing work for twenty days); State v. Williams, 740 S.W.2d 244, 246 (Mo.App. E.D.1987) (five inch cut and two inch cut, both from a knife).

The motion court’s findings of fact and conclusions of law were not clearly erroneous. We are not left with a definite and firm impression that a mistake has been made. The judgment of the motion court denying Movant’s request for post-conviction relief is affirmed.

BATES, C.J., and SHRUM, P.J., concur.

      . All references to statutes are to RSMo (2000), and all references to rules are to Missouri Rules of Criminal Procedure (2004), unless otherwise indicated.

      . Movant, relying on Price, 137 S.W.3d at 542, states in his brief that he "does not challenge the motion court's use of evidence presented at sentencing in reaching its determination that there was 'serious physical injury.’ ”


author: ROBERT S. BARNEY, Judge.

text:
    LAKE OSAGE CONDOMINIUM ASSOCIATION, INC., Appellant, v. Gary PREWITT, Respondent.
    No. 26862.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 30, 2005.

      Lester C. Stuckmeyer, Jr., St. Louis, for appellant.
    Matthew F. Howard, Eldon, for respondent.
   ROBERT S. BARNEY, Judge.

Lake Osage Condominium Association, Inc., (“Appellant”) purports to appeal the trial court’s “Memorandum” order dated November 9, 2004, granting Gary Prewitt’s (“Respondent”) motions to set aside a pri- or default judgment entered on June 22, 2004, against Respondent. This prior default judgment awarded Appellant the principal sum of $15,386.32, together with attorney fees and costs arising from unpaid assessments, costs and dues attendant to Respondent’s ownership of a condominium unit in Camden County, Missouri.

Appellant also appeals a subsequent docket entry judgment, dated January 20, 2005, which denied, Appellant’s claims against Respondent for these same unpaid assessments, costs, dues, attorney fees and costs.

The record shows that on May 6, 2004, Appellant filed suit against Respondent, the owner of condominium “Unit 202A,” alleging that Respondent had failed to pay $15,854.32, together with any other unpaid assessments, late fees, interest, and collection costs associated with his ownership interest in Unit 202A. Appellant also alleged it was owed $15,854.32 on a theory of quantum meruit. Respondent failed to answer the petition.

On June 22, 2004, the trial court entered a default judgment in favor of Appellant in the amount of “$15,386.32, and attorney’s fees in the amount of $5,128.00, plus court costs of $145.00 for a total judgment of $20,659.32, with interest continuing to accrue at the statutory rate of 9 [percent] per annum from June [22], 2004.” Appellant then instituted execution and garnishment proceedings against Respondent and a writ of garnishment was issued on July 30, 2004.

On August 17, 2004, Respondent filed a motion to quash the execution of the default judgment and a “Motion for Order Granting Relief from Judgment Pursuant to Rule 74.06.” In his Rule 74.06 motion, Respondent requested the trial court set aside the default judgment based on his counsel’s “mistake, inadvertence and excusable neglect....” Respondent went on to state that he believed the claims in the petition “are subject to meritorious defenses ...,” and that the judgment “is irregular and/or ... is void in that [Appellant] ... is not a true party in interest, and/or lacks capacity or standing to sue in the above captioned cause, and accordingly the proceedings and Judgment issued herein are a nullity and void.”

Thereafter, on October 12, 2004, Respondent filed a “Supplemental Motion for Relief from Judgment and Order Quashing Execution and Notice of Hearing” made “pursuant to Rule 74.05, in the alternative and supplemental to his [previous] motion under Rule 74.06(b)(1)-” In his supplemental motion, Respondent set out, inter alia, that some of the fees and charges assessed by Appellant were time barred and that because Appellant was not a legal entity, it could not sue him in its own name.

Following the November 9, 2004, hearing, the trial court penned a writing which, in pertinent part, set out as follows:

MEMORANDUM
Comes now for hearing [Respondent’s] motion to set aside default judgment and the court being fully advised finds:
1. That [Respondent] has good cause and a meritorious defense and therefore the motion to set aside is granted.
2. That the court takes under advisement the awarding of [Appellant’s] attorney fees under Rule 74.05.
3. That the money in the registry of the court is to remain until disposition.
4. That this matter is set for trial Dec. 20, 2004.
Dated: 11-9-2004
SO ORDERED:
/s/ Bruce E. Colyer
Circuit Judge

The matter was again called for hearing on Appellant’s original petition on December 20, 2004. On January 20, 2005, the trial court entered its judgment by way of a docket entry. In pertinent part, the trial court found that

[Appellant] is not the real party in interest ... that the real party in interest (per the exhibits and testimony) is Lake Osage Condominium Owner’s Association, Inc. [Appellant’s] counsel was given the opportunity to amend his pleadings but never did. Therefore the Court finds that said named [Appellant] is not the real party in interest to pursue the action filed.

“Court orders judgment for [Respondent].” This appeal by Appellant followed.

In its first point of trial court error, Appellant maintains the trial court’s grant of Respondent’s motion to set aside the default judgment was in error “[b]ecause the decision was made without competent evidence being presented to the trial court....” Specifically, Appellant argues that Respondent’s underlying motion to set aside the default judgment “was not verified or accompanied by supporting affidavits and the trial court did not hold an evidentiary hearing as required by Rule 74.05 of the Missouri Rules of Civil Procedure.”

Movant “filed his Motion to Set Aside more than thirty days after entry of the default judgment-that is, after the judgment was final pursuant to Rule 75.01.” Am. Std. Ins. Co. v. Bittick, 112 S.W.3d 55, 56-57 (Mo.App.200S). “ men such a motion is filed after the default judgment has become final, it is treated as an independent proceeding, separate and apart from the underlying judgment.’ ” Id. at 57 (quoting Popular Leasing USA, Inc. v. Universal Art Corp., 57 S.W.3d 875, 878 (Mo.App.2001)). “The independent nature of this proceeding requires the entry of a new final judgment to invoke appellate jurisdiction.” Id. “‘In such a case, the trial court’s order granting or denying the motion to set aside default judgment is itself (assuming that all other prerequisites of appellate jurisdiction are met) a separately appealable judgment.’ ” McElroy v. Eagle Star Group, Inc., 156 S.W.3d 392, 400 (Mo.App.2005) (quoting Popular Leasing, 57 S.W.3d at 878).

“[T]hough neither party’s brief questions this [C]ourt’s jurisdiction over the instant appeal, we have a duty to determine our appellate jurisdiction sua sponte.” McElroy, 156 S.W.3d at 398. “Absent one of the exceptions expressly set out in [s]ection 512.020, an aggrieved party may only appeal from a final judgment of the trial court.” Hampton v. King Royal Bros. Circus, 140 S.W.3d 257, 259 (Mo.App.2004). “If the trial court’s judgment is not final, this [C]ourt is without jurisdiction to consider the appeal, and the appeal must be dismissed.” Id. As with all final, appealable judgments, orders setting aside default judgments must comply with Rule 74.01 and be “signed by the judge and denominated ‘judgment’ or ‘decree’ .... ” Am. Std., 112 S.W.3d at 56 (quoting Rule 74.01).

In the present matter, we simply cannot review Appellant’s first claim of error because the trial court’s November 9, 2004, “Memorandum” order did not comply with the aforementioned requirements of Rule 74.01. See City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997); Hampton, 140 S.W.3d at 259.

“Rule 74.01(a) ‘imposes an express requirement that the document or docket notation be denominated ‘judgment.’ It does not expand or shrink jurisdiction, the right to appeal, or any other substantive right.’ ” Id. (quoting Hughes, 950 S.W.2d at 853). “In designating the writing a ‘judgment,’ it must be clear from the writing that the trial court is calling the document, or docket sheet entry a judgment.” Id. “ ‘The requirement that a trial court must ‘denominate’ its final ruling as a ‘judgment’ is not a mere formality. It establishes a ‘bright line’ test as to when a writing is a judgment.’” Id. (quoting Williams v. Dir. of Revenue, 69 S.W.3d 919, 920 (Mo.App.2002)).

“Whether the designation “judgment” appears as a heading at the top of the writing, within the body of the writing in some other manner, or in the entry on the docket, it must be clear from the writing that the document or entry is being “called” a “judgment” by the trial court. Depending upon the text, mere use of the word “judgment” in the body of the writing or docket entry may not suffice.’

Hampton, 140 S.W.3d at 259 (quoting Hughes, 950 S.W.2d at 850).

In Hampton, this Court reviewed a writing entitled “Order” which consisted of a single paragraph where the trial court set forth its ruling. Id. Nowhere in the writing did the term “judgment” appear. Id. Additionally, the docket entry reflected that an order was entered on a particular date. Id. Also, the writing ended with a recitation, as follows: “which considers, orders, and adjudges that [ajppellant’s motions -were .overruled.” Hampton, 140 S.W.3d at 259. We determined that the “Order” did not constitute a final judgment because the order was not denominated a judgment. Id. The instant writing contains similar deficiencies to those in Hampton. Point dismissed.

Appellant’s second point on appeal alleges the trial court erred in entering its January 20, 2005, docket entry judgment against it “because the trial court erroneously applied the law regarding misnomers, in that it found that the designation of Appellant in the petition as Lake Osage Condominium. Association, Inc. should have been Lake Osage Condominium Owners Association, Inc. and therefore the Appellant was not the real party in interest.”

Due to the disposition of Appellant’s first point on appeal, Appellant’s second point on appeal must also be dismissed.

As previously stated, “ ‘[i]f a trial court’s order is not a final judgment, an appellate court lacks jurisdiction and must dismiss the appeal from that order.’ ” Gentry, 64 S.W.3d at 345 (quoting Holt v. Dir. of Revenue, 968 S.W.2d 228 (Mo.App.1998)). Here, having found that the trial court’s “Memorandum”, order setting aside the default judgment was not a final judgment, this Court cannot review Appellant’s claim relating to the trial court’s subsequent January 20, 2005, docket entry judgment which disposed of this matter on its merits. The January 20, 2005, judgment was dependent on the trial court’s prior jurisdictional authority to adjudicate Appellant’s claims. “If a court cannot try a question except under particular conditions or unless petitioned in a particular way, it has no jurisdiction until such conditions exist or unless the court is approached in a manner which bestows jurisdiction.” State ex rel. Robinson v. Crouch, 616 S.W.2d 587, 592 (Mo.App.1981). In the instant matter, the trial court had no jurisdiction to enter the second order. Point dismissed.

Accordingly, we dismiss Appellant’s appeal and remand the matter to the trial court for proceedings consistent with this opinion.

SHRUM, P.J„ and BATES, C.J., concur.

      . Rule 74.06(b) states:
      On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment or order for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is irregular; (4) the judgment is void; or (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment remain in force.
      Unless otherwise stated, all rule references are to Missouri Court Rules (2004) and all statutory references are to RSMo 2000.

      , Rule 74.05(d), which specifically relates to setting aside default judgments, states:
      Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside. The motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment. Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process. An order setting aside an interlocutory order of default or a default judgment may be conditioned on such terms as are just, including a requirement that the party in default pay reasonable attorney’s fees and expenses incurred as a result of the default by the party who requested the default.

      . See also Brilliant v. Feinberg, 7 S.W.3d 20, 22 (Mo.App.1999) (holding that 'there is no final judgment where a “memorandum is not denominated ‘judgment’ or ‘decree’ as required by Rule 74.01(a)”); Logan v. Sho-Me Power Electric Co-op., 83 S.W.3d 109, 111 (Mo.App.2002) (holding that although denom-mated a judgment, where a docket sheet is neither signed nor initialed by judge there is no final judgment under Rule 74.01(a)); Gentry v. Gentry, 64 S.W.3d 344, 345 (Mo.App.2002) (holding that an order not denominated a judgment is not final for purposes of appeal).