Jennings v. State, 12274

• Decision Date: 15 March 1982
• Docket Number: No. 12274,12274
• Citation: 631 S.W.2d 361
• Parties: Jerry JENNINGS, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 361

631 S.W.2d 361

Jerry JENNINGS, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 12274.

Missouri Court of Appeals, Southern District, Division Two.

March 15, 1982.

Cody A. Hanna, Buffalo, for movant-appellant.

John Ashcroft, Atty. Gen., Priscilla Gunn, Asst. Atty. Gen., Jefferson City, for respondent.

MAUS, Chief Judge.

The movant was charged with capital murder (then first degree murder) for the shotgun slaying of Joe Woodruff on March 25, 1974. A jury found him guilty of murder in the second degree. As a habitual criminal, the court sentenced him to life imprisonment. Upon appeal to this court, his conviction was affirmed. State v. Jennings, 555 S.W.2d 366 (Mo.App.1977). In this case he seeks to have his sentence set aside by his motion filed under Rule 27.26. After an evidentiary hearing, the trial court denied that motion. On appeal, the movant presents four points by which he contends the trial court erred in denying his motion.

His first point is that he was sentenced by a court "without jurisdiction to try the case". That point is asserted with the following factual background. A complaint was filed in the magistrate court of Laclede County. A preliminary hearing was held and the movant was bound over to answer a felony charge in the circuit court of Laclede County. The movant then filed in that circuit court his application for a change of venue from the 26th judicial circuit. This application was sustained and the case removed to the circuit court of Dallas County. Thereafter, an information was filed in the circuit court of Dallas County. The information, following the language of the complaint, did not include an allegation the movant acted "deliberately". The day the information was filed, the prosecuting attorney sought leave to amend that information by adding an allegation that the movant did kill Joe Woodruff "deliberately". The movant withdrew his objection to that amendment and expressly waived his right to a preliminary hearing upon the amended charge. The movant was arraigned upon the amended information and entered a plea of not guilty.

It is expressly provided that a prisoner in custody seeking relief on the ground that his sentence was imposed by a court "without jurisdiction to do so" may file a motion to set aside that sentence. Rule 27.26. However, such an attack under Rule 27.26 is a collateral attack. State ex rel. Reece v. Campbell, 551 S.W.2d 292 (Mo.App.1977). The absence of jurisdiction referred to must be such as to cause the sentence to be void. Wilhite v. State, 614 S.W.2d 33 (Mo.App.1981). It is not a lack of jurisdiction to proceed that could have been raised by timely objection but otherwise may be waived. Lee v. State, 591 S.W.2d 151 (Mo.App.1979).

The term "jurisdiction" may bear one of several different meanings. It may be used with the connotation of jurisdiction over the subject matter. State v. Mitchell, 229 Mo. 683, 129 S.W. 917 (1910). Or, it may be used in the sense of the power to render the particular judgment in question. State v. Nolan, 418 S.W.2d 51 (Mo.1967). Or, in the sense of venue. State v. Wood, 596 S.W.2d 394 (Mo. banc 1980). Or, the term may refer to jurisdiction of the person. State v. Mitchell, supra. The movant argues the circuit court of Laclede County did not acquire "jurisdiction of the case" because no information was filed in that court. Therefore, he reasons, that circuit court had no power to remove the case to the circuit court of Dallas County. Then, he concludes the circuit court of Dallas County had no jurisdiction to try the case or to impose the sentence. To support this argument he cites cases saying that a felony case is instituted by indictment or information filed in the circuit court, such as State v. Hasler, 449 S.W.2d 881 (Mo.App.1969). He does not reconcile cases saying the filing of a complaint in the magistrate court was the first step in instituting a criminal charge. State v. Rhodes, 591 S.W.2d 174 (Mo.App.1979). This proposition is now set forth in the criminal rules. Rule 22.01 effective January 1, 1980. Nor, does he controvert cases holding "(t)he jurisdiction of the subject matter was vested in the magistrate court when the charge was filed, and the jurisdiction of Standefer's person was obtained when he was arrested and put in jail". State ex rel. Standefer v. England, 328 S.W.2d 732, 735 (Mo.App.1959). Also see State ex rel. Lamar v. Impey, 365 Mo. 437, 283 S.W.2d 480 (banc 1955). For the reasons hereafter stated, it is not necessary to determine whether or not granting movant's application for a change of venue before an information was filed was an irregularity or a deviation from prescribed procedure.

To support his conclusion, movant cites other cases which he asserts show the circuit court of Dallas County had no jurisdiction and that such lack of jurisdiction could not be waived. However, these cases deal with a court that had no jurisdiction over the subject matter, e.g. State v. Ferguson, 278 Mo. 119, 212 S.W. 339 (banc 1919). Or, they deal with the lack of power of a circuit court to render a particular judgment because no information had been filed e.g., Montgomery v. State, 454 S.W.2d 571 (Mo.1970). Or, because the information did not charge the crime of which the defendant was convicted e.g., State v. Brooks, 507 S.W.2d 375 (Mo.1974); State v. Nolan, supra.

There is no doubt the circuit court of Dallas County, as well as the circuit court of Laclede County, had jurisdiction of the subject matter. State v. Mitchell, supra. The movant does not question the fact the amended information charged the crime of capital murder. It is clearly established the movant could waive a preliminary hearing upon the amended charge, State v. Wood, supra; State v. McKinley, 341 Mo. 1186, 111 S.W.2d 115 (1937); State v. Cooper, 344 S.W.2d 72 (Mo.1961), if such was necessary. State ex rel. Thomas v. Crouch 603 S.W.2d 532 (Mo. banc 1980). From the record it is clear that he did so. It is equally clearly established that the movant could waive jurisdiction in the sense of venue. State v. Wood, supra; Hogshooter v. State, 585 S.W.2d 175 (Mo.App.1979). From the record it is clear that he did so. It is also clear the circuit court of Dallas County acquired jurisdiction of his person. State v. Conway, 351 Mo. 126, 171 S.W.2d 677 (1943).

In summary, the movant's sentence resulted from a trial upon an information that properly charged him with capital murder and in a circuit court that had jurisdiction of the subject matter and of his person. If there was an irregularity concerning venue, that irregularity was waived. "Having made his election, and the court having awarded him a change of venue at his own request, he cannot now complain of the privilege granted him." State v. Taylor, 132 Mo. 282, 287, 33 S.W. 1145, 1147 (1896). Also see State v. Hampton, 172 S.W.2d 1 (Mo.1943). The movant's first point is denied.

The movant's next three points, each assigning a different reason, assert he was denied the effective assistance of counsel. Counsel is ineffective if he does not render "that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances". Reynolds v. Mabry, 574 F.2d 978, 979 (8th Cir. 1978), adopted in Seales v. State, 580 S.W.2d 733 (Mo. banc 1979). The movant has the burden of proving a breach of that standard and that he was prejudiced thereby. Rodgers v. State, 610 S.W.2d 25 (Mo.App.1980); Covington v. State, 600 S.W.2d 186 (Mo.App.1980). These three points require a statement of the evidence.

Rita Gail Griffin was an 18-year-old dispatcher for a cab company in Lebanon. Joe Woodruff had been a driver for the cab company, but had been terminated. It is not clear that he had been re-employed at the time of his death. Griffin and Woodruff had "gone together" for two or three months and he had lived with her for one and one-half days before his death. Linda Yaeger was Woodruff's ex-wife who lived in Lebanon. The cab stand was located in the bus station. Griffin and Yeager testified to the following facts. At approximately 7:30 to 8:00 p. m. on March 25, 1974, the movant and Larry Eldon Young came to the bus station in a blue Ford. Griffin and Woodruff were there. Griffin heard parts of a conversation between Woodruff and movant. Initially, the movant threatened Woodruff saying, "I am here to pick you up" and "I am here to get your ass". Then the conversation took on a more friendly tone. Woodruff made a phone call. A friend of his soon arrived and joined the conversation. Later, the movant and Young left.

Linda Yaeger, in response to a phone call from Woodruff, then arrived at the bus station. She and Woodruff talked "a lot". During the conversation, Woodruff said, "someone was out to kill him, Jerry from Conway". When movant and Young returned, Woodruff again talked with them. They left and Woodruff followed driving a blue Pontiac he borrowed from Yaeger. When Woodruff did not return as expected, Yaeger drove toward the place she had been told Woodruff was to meet the movant. She met her Pontiac closely followed by the blue Ford. She could not see who was driving the vehicles, but assumed everything was all right and returned to the bus station. Woodruff did not return.

The testimony of various law enforcement officers established the following facts. At approximately 1:30 a. m. on the night in question, an officer on patrol saw a pool of blood on a low-water bridge over a stream in southeast Laclede County. There was a shotgun pellet in the pool of blood. After driving a short distance, the officer found the Yaeger Pontiac parked and locked on a side road between the bridge and Lebanon. There were extensive blood stains in the rear seat of the Pontiac and blood had flowed under the rear seat cushion to the floor board. There, blood had accumulated and there was a hole from which it dripped to the...