Hicks v. State, 14755
| Decision Date | 01 October 1986 |
| Docket Number | No. 14755,14755 |
| Citation | 719 S.W.2d 86 |
| Parties | John HICKS, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
M. Elise Branyan, Asst. Public Defender, Springfield, for movant-appellant.
William L. Webster, Atty. Gen., Kevin B. Behrndt, John M. Morris, Asst. Attys. Gen., Jefferson City, for respondent.
Movant John Hicks appeals from an order denying, without an evidentiary hearing, his Rule 27.26 1 motion to set aside a judgment and sentence for first degree robbery. In the underlying criminal proceeding the trial court found defendant guilty of first degree robbery and sentenced him to 10 years' imprisonment. This court affirmed that judgment. State v. Hicks, 591 S.W.2d 184 (Mo.App.1979).
Movant asserts that the trial court erred in denying his motion because the motion should have been sustained on each of the following grounds:
(a) The state of Missouri failed "to retain custody of [movant] after disposition of his state charges and thereby waived jurisdiction over him." Movant makes a more specific statement of this ground by claiming that Missouri "interrupted [movant's] Missouri sentences by releasing custody of him to the federal authorities in California," and that "[movant] was not afforded 'jail time' for the time he spent in federal custody after he was removed from state control."
(b) The state of Missouri violated certain provisions of the "Agreement on Detainers" (§ 217.490), which [so the brief states] "require the state to dispose of movant's charges within one hundred eighty (180) days after receipt of his request and mandate that a prisoner is to be held in a suitable jail or other facility regularly used for prisoners awaiting prosecution."
The following are the significant events:
November 12, 1975--Movant, a prisoner in the Dallas County jail awaiting trial on other charges, escaped from jail.
November 12, 1975 (later the same day)--Movant committed the first degree robbery in Webster County.
January 16, 1976--Webster County prosecutor Donald Cheever filed an information on the robbery charge. Movant pleaded not guilty and obtained a change of venue to Greene County.
February 15, 1976--Movant again escaped from the Dallas County jail while awaiting trial, in Dallas County, on a charge of escape from jail, based on the November 12, 1975 escape.
August 1976--Movant began to serve two criminal sentences of six years and two years, respectively, in the federal penitentiary at Terminal Island, California.
January 20, 1977--Dallas County prosecutor filed, with the federal warden in California, a detainer against movant for the two escape charges.
January 18, 1978--Movant pleaded guilty, in Dallas County, to the two charges of escape and was committed to the Missouri Division of Corrections.
March 7, 1978--Prosecutor Cheever, by letter, notified the federal warden in California that the robbery case was set for trial on March 20 and asked that movant be detained in Missouri to face the robbery charge.
May 3, 1978--Trial of robbery case, resulting in conviction.
May 15, 1978--Movant received 10-year sentence on robbery conviction.
May 31, 1978--Movant returned to California to finish serving his federal sentences.
November 26, 1979--Missouri Court of Appeals affirmed robbery conviction.
March 12, 1981--Movant transferred to federal prison in Springfield, Missouri.
May 27, 1981--Missouri authorities took custody of movant and he commenced serving the robbery sentence.
January 18, 1983--In federal habeas corpus proceeding filed by movant in Missouri, United States District Judge John W. Oliver dismissed the proceeding "in light of [movant's] failure to exhaust his State court post-conviction remedies." Hicks v. Wyrick, 555 F.Supp. 763 (W.D.Mo.1983).
August 26, 1983--Movant filed, in the Supreme Court of Missouri, petition for writ of habeas corpus, naming as respondent the superintendent of the Missouri prison where movant was then incarcerated. This petition sets forth the same grounds contained in ground (a) on the instant appeal.
September 6, 1983--Movant filed Rule 27.26 motion in Greene County, (later supplemented by two successive motions).
September 20, 1983--The Supreme Court of Missouri entered the following order: "Now at this day, on consideration of the petition for writ of habeas corpus, herein to the said respondent, it is ordered by the Court here (sic) that the said petition be and the same is hereby denied." 2
April 18, 1986--Trial court denied relief on Rule 27.26 motions.
April 25, 1986--Instant appeal filed.
Re: Ground (a)
Rule 91.22 reads:
"When a petition for a writ of habeas corpus has been denied by a higher court, a lower court shall not issue the writ unless the order in the higher court denying the writ is without prejudice to proceeding in a lower court."
In his petition for writ of habeas corpus, filed in the Supreme Court of Missouri on August 26, 1983, movant set forth the same grounds contained in ground (a) on the instant appeal. The supreme court denied the petition and the order of denial did not state that it was "without prejudice to proceeding in a lower court." Accordingly, neither the trial court in the Rule 27.26 proceeding, nor this court on the appeal of that proceeding, has the power to grant relief on the basis of ground (a). State v. Goodwin, 396 S.W.2d 548 (Mo.1965); State v. Thompson, 324 S.W.2d 133 (Mo. banc 1959).
In State v. Goodwin, supra, defendant, who had been found guilty of murder, filed a habeas corpus proceeding in the supreme court and that tribunal denied the petition. Defendant then filed a Rule 27.26 proceeding in the circuit court of Jackson County. The trial court denied the motion and movant appealed. On the appeal movant made the same claims which he made in his original appeal from the conviction and in the habeas corpus proceeding.
At p. 549 the supreme court, affirming the judgment, said:
"The consequence of all these matters is that there is no basis for this proceeding under Criminal Rule 27.26 to vacate the sentence and judgment, all the issues he now seeks to raise were fully considered in both the former appeal and the habeas corpus proceeding and 'he is thereby precluded from litigating the question further by means of a motion to vacate and set aside,' ..."
In State v. Thompson, supra, defendant, in 1948, was found guilty of murder and was sentenced. No appeal was taken. In 1951 defendant filed a habeas corpus proceeding in the supreme court and presented certain grounds for relief. His petition was denied. In 1956 defendant filed a Rule 27.26 proceeding based on the same grounds asserted in the 1951 habeas corpus proceeding. The trial court denied the Rule 27.26 motion and movant appealed. In affirming the trial court's ruling the supreme court said, at p. 139:
The trial court properly denied Hicks relief on ground (a).
Re: Ground (b)
The robbery trial commenced May 3, 1978. Movant's brief takes the position that he made a "request for final disposition" contemplated by Art. III(1) of the Agreement on Detainers and that he did so on September 19, 1977. The brief then says: "Hicks went to trial in Greene County on May 3, 1978, 226 days after Hicks requested final disposition of all detainers pending against him."
As the excellent brief of the state points out, at least one flaw, fatal to ground (b), is that there was no detainer lodged against Hicks with respect to the robbery charge which had been filed by the Webster County prosecutor on January 16, 1976. Although detainers were lodged with respect to the Dallas County escape charges, no detainer was lodged with respect to the robbery charge.
Art. III of the Agreement on Detainers, set forth in § 217.490, reads, in pertinent part:
"1. Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint....
2. [Provides for the prisoner giving the request and notice to the warden who shall promptly forward it, with certificate, to 'the appropriate prosecuting official and court.']
3. The warden ... shall promptly inform [the prisoner] of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the...
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