State ex rel. Jones v. Cooksey, 74343

• Decision Date: 21 April 1992
• Docket Number: No. 74343,74343
• Parties: STATE of Missouri ex rel. Jimmie JONES, Relator, v. The Honorable James M. COOKSEY, et al., Respondents.
• Court: Missouri Supreme Court

Page 421

830 S.W.2d 421

STATE of Missouri ex rel. Jimmie JONES, Relator, v. The Honorable James M. COOKSEY, et al., Respondents.

No. 74343.

Supreme Court of Missouri En Banc.

April 21, 1992.

William L. Webster, Atty. Gen., Christine Alsop, Asst. Atty. Gen., Jefferson City, for relator.

Anthony Cardarella, Asst. Appellate Defender, Kansas City, Nancy A. McKerrow, Columbia, for respondents.

JAMES F. McHENRY, Special Judge.

On September 23, 1982, Richard Austin committed robbery in the first degree in Howell County, Missouri. Four days later he committed the offense of kidnapping in Kansas and was there arrested on that charge on September 29. On that same day, a Missouri detainer was lodged against him.

On March 4, 1983, Austin was received by the Kansas Department of Corrections to begin serving a sentence imposed for the kidnapping.

Having been returned to Missouri custody on September 1, 1983, to dispose of the robbery charge, Austin was tried to a jury and convicted. On November 10, 1983, he was sentenced to fifteen years, the court then ordering that he be "allowed credit for all time held on detainer since September 29, 1982." The number of days to be credited was not specified.

Austin then was returned to Kansas to resume serving his sentence there and was ultimately returned to Missouri on January 3, 1990, to begin serving the fifteen-year robbery sentence here. Having learned after his return that he had not been given credit for any of the time he had been held "on detainer" in Kansas, as had been ordered by the sentencing court, he first filed an institutional grievance containing the following request: "So would you please look into the matter. My time credit of how much time I have served reflexes [sic] my Custody level and parole date."

At the fifth and final rung of the grievance ladder, the director of the department of corrections concluded, and so advised Austin, that none of the time served under the Missouri detainer could be credited because a Kansas sentence was being served during its pendency.

Austin then applied for a writ of habeas corpus in the Circuit Court of Randolph County. His petition, against relator herein, superintendent of the Moberly Correctional Center, asserted not one, but two grounds for relief: that "his time was calculated wrong" and that he "was not being allowed all the time credit that was granted him by the Wright County Court."

A show cause order was issued by the circuit court pursuant to Rule 91.05, the court therein advising that after response had been made, it would "determine whether or not Petitioner is entitled to evidentiary hearing and if so will set cause for hearing."

The superintendent filed a response, stating that petitioner "was not entitled to jail time credit for the period in which he was incarcerated in the Kansas Department of Corrections, even though Missouri had lodged a detainer against [him], because [he] was serving a Kansas sentence."

Thereafter, the court made the following docket sheet entry:

Court having reviewed the petition, answer thereto and the accompanying filings finds that the facts are not in dispute and the question of credit for jail time is matter of law. The court further finds and [sic] evidentiary hearing is not necessary and will consider the case submitted as of Monday, December 24, 1990. Clerk to notify. [Emphasis added.]

On January 18, 1991, the matter was disposed of by the following docket sheet entry, no formal order having issued:

Matter comes for adjudication. Court finds in favor of Petitioner as to his Motion that he be allowed an additional jail time credit of 337 days as per the order signed on November 10, 1983, by Judge Turner. The jail time of 337 days being those days Petitioner was held on detainer from September 29, 1982 to November 10, 1983 when Judge Turner entered his order in unambiguous language allotting Petitioner those days. Respondent, MO Department of Corrections is hereby ordered to credit Petitioner's sentence accordingly. Court finds no other relief to be granted. Costs taxed to Respondent, State of Missouri [Emphasis added].

From this decision relator superintendent filed a petition for a writ of certiorari in the court of appeals, contending that the habeas corpus court acted in excess of its jurisdiction in ordering the time credited. The preliminary writ issued, "that the matter might be reviewed" and that the court "may further cause to be done thereupon what it may appear of right ought to be done...." Finding that the habeas corpus court was without jurisdiction to grant the credit, the court of appeals quashed the record and judgment below.

The cause was accepted for transfer here, and we decide the matter as if the writ had been issued by this Court, mindful of the purposes of the writ as aforementioned, searching the record of the circuit court below only for infirmities in jurisdiction or power, and concerned only with questions of law and not of fact.

Before considering the contentions of the parties, it should first be observed that petitioner did not specifically request credit for the 337 days granted him by the habeas corpus court, but only, as aforementioned, for that amount of time which the sentencing court had purported to grant him. The sentencing court had not awarded him a specific number of days, but only, in effect, such time as had been spent on detainer between September 29, 1982, and the sentencing proceeding on November 10, 1983. That period encompassed a total of 407 days.

The orders of both the sentencing court and the habeas corpus court may be seen, nonetheless, to be essentially identical. Austin, as earlier stated, had been returned to Missouri custody on September 1, 1983. He was not sentenced, however, until November 10, 1983; thus, for those 70 days, he was not "on" a Missouri detainer but in actual Missouri custody. The difference between 407 days and 70 days is the 337 days ordered credited by the habeas corpus court.

Proceeding first to respondent's contentions, it is clear that one relates only to procedure: that any claim of error concerning the trial court's judgment and sentence was waived by failure to raise it at the sentencing proceeding. As to that assertion, the short but dispositive answer is that the issue of jurisdiction is never waived, may be challenged at any time and is the very question upon which the resolution of this case turns.

Respondent's remaining and principal contention is that because a sentencing court has jurisdiction to impose punishment anywhere within the statutory range, and because no statute or procedural rule prohibits it from extending that jurisdiction to credit the 337 days jail time by reducing the sentence to that extent, it may do so.

The sentencing discretion afforded a judge is of a different nature, however, than that contemplated by respondent. It is for the purpose of suiting the punishment to the crime, rather than adjusting a sentence otherwise appropriate by the number of days perceived by the trial court to be creditable as jail time. Thurston v. State, 791 S.W.2d 893 (Mo.App.1990).

At a time past, discretion did play a part in the crediting of jail time. Under the provisions of § 546.615, RSMo 1959, the predecessor to the present statute, § 558.031, RSMo 1986, credit for time spent between sentencing and delivery to a correctional institution was mandatory. The awarding of that served prior to sentencing, however, was affirmatively reserved to the discretion of the sentencing court.

That discretion was removed, however, by the 1971 amendment to § 546.615, when the crediting of both became mandatory, as they are today under the provisions of § 558.031, whether ordered by the sentencing court or not. It is clear that if the legislature had wanted the court to have discretion in this area, it would have granted it, as it had in the past.

Relator urges, first, that the 337 days were not creditable at all, by the court or the sheriff or the department of corrections, because the confinement was neither "compelled by" Missouri nor "related to" the Missouri charge, citing Harkins v. Lauf, 532 S.W.2d 459 (Mo. banc 1976); and second, that the sentencing court acted outside its jurisdiction in crediting any jail time because no jail time of any kind may be credited except by endorsement thereof on the commitment papers by a sheriff pursuant to subsection 558.031.2, RSMo 1986.

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