State ex rel. Nixon v. Koonce
| Decision Date | 31 May 2005 |
| Docket Number | No. WD 64353.,WD 64353. |
| Citation | 168 S.W.3d 656 |
| Parties | STATE of Missouri ex rel. Jeremiah W. (Jay) NIXON, Attorney General, State of Missouri, Respondent, v. Tony KOONCE, Appellant. |
| Court | Missouri Supreme Court |
Tony Koonce, Bowling Green, pro se.
Jeremiah W. (Jay) Nixon, Atty. Gen., Paul Harper, Assistant Attorney General, Jefferson City, MO, for Respondent.
Before: EDWIN H. SMITH, C.J., and HOLLIGER and HOWARD, JJ.
Tony Koonce appeals, pro se, from a judgment of the Circuit Court of Cole County in favor of the respondent, the State of Missouri, on its petition for reimbursement, pursuant to the Missouri Incarceration Reimbursement Act (MIRA), §§ 217.825-.841,1 for the costs of his incarceration in the Missouri Department of Corrections (DOC). The appellant was convicted in 1986, in the Circuit Court of the City of St. Louis, of two counts of forcible rape, one count of forcible sodomy, and one count of attempting to commit forcible sodomy. He was sentenced to serve concurrent prison terms of thirty years on each count in the DOC, which sentences he began serving in 1986.
The appellant raises three points on appeal. In Point I, he claims that the trial court erred in entering judgment in favor of the State on its MIRA petition because the court lacked personal jurisdiction due to insufficient service of process, in accordance with § 217.835.2. In Point II, he claims that the trial court erred in entering judgment in favor of the State on its MIRA petition because it violated § 217.831.3, which requires a threshold amount that must be available for the recovery of incarceration expenses before the Attorney General can file a MIRA petition. In Point III, he claims that the trial court erred in ordering him to pay the full filing fee for this appeal because it violated § 506.369, which limits an inmate's filing fee to a partial assessment based on the activity of his correctional center account for a six-month period preceding the filing of the appeal.
We affirm.
On January 31, 1986, the appellant was ordered to serve, pursuant to his convictions of two counts of forcible rape, one count of forcible sodomy, and one count of attempting to commit forcible sodomy, concurrent prison terms of thirty years on each count in the DOC. He is currently serving those sentences, which commenced in 1986, at the Northeast Correctional Center in Bowling Green, Missouri.
On December 5, 2003, the State filed, in the Circuit Court of Cole County, a MIRA petition seeking reimbursement for the appellant's cost of incarceration. The appellant was served with the petition by certified mail, addressed to him personally. The petition alleged that the State expends approximately $13,000 per year for each inmate in the custody of the DOC, and that it had expended, to date, $163,194.81 in incarcerating the appellant. The petition further alleged that the appellant had a balance of $2,199.51 in his correctional center account.
On December 8, 2003, the trial court entered an order directing the appellant to show cause why an order should not be entered appropriating his assets to reimburse the State for the cost of his incarceration and appointing a receiver for the funds in the appellant's inmate account. The order further directed the appellant to respond by February 18, 2004.
On January 12, 2004, the appellant filed a response to the trial court's show cause order. In his response, the appellant claimed that the State was not entitled to reimbursement because the State had failed to comply with the statutory requirements of MIRA. Specifically, he alleged that the State could not seek reimbursement in accordance with MIRA in that the amount in his correctional center account was $2,199.51, which was less than 10% of the estimated costs of two years of incarceration, and less than 10% of the estimated costs of his entire incarceration. The appellant asked the court to dismiss the respondent's petition.
On January 13, 2004, the State filed a "response to defendant's motion to dismiss," alleging that, in addition to the $2,199.51 in the appellant's correctional center account, at the time the petition was filed, the account activity demonstrated consistent monthly deposits of $230 since May of 2003. From this, the State alleged that the appellant had an income stream sufficient to pay, within a five-year period, either ten percent of the estimated costs of the appellant's incarceration, or ten percent of such costs for two years, whichever was less, as required by § 217.831.3.
On February 2, 2004, the appellant filed a supplemental response to the trial court's show cause order, in which he responded to the issues raised by the State in its response. The appellant contended that any allegation of a future income was merely speculative, and that the monthly deposits were gifts from family and friends, which could be discontinued at any time due to economic hardships or other reasons.
On February 18, 2004, the trial court heard the State's petition. On the same date, the court entered a judgment for the State, finding that the appellant had $2,053.28 in his correctional center account, and that ninety percent of that account, or $1,847.96, was subject to reimbursement, under the MIRA. The court ordered the inmate finance officer of the DOC to pay $1,847.96 from the appellant's inmate account into the Inmate Incarceration Reimbursement Act Revolving Fund, established by § 217.841.1. The court also entered judgment against the appellant for reimbursement of future costs of his incarceration.
This appeal followed.
In Point I, the appellant claims that the trial court erred in entering judgment in favor of the State on its MIRA petition because the court lacked personal jurisdiction due to insufficient service of process in that the respondent's petition was not served by registered mail addressed to the chief administrator of the correctional center where he was incarcerated, as required by § 217.835.2. We disagree.
Section 217.835.2 provides, inter alia, that a petition for the reimbursement of incarceration costs "shall be served upon the person personally, or, if the person is confined in a state correctional center, by registered mail addressed to the person in care of the chief administrator of the state correctional center where the person is housed." In this case, even though the appellant was "confined in a correctional center," the petition was mailed to him personally, via certified mail, rather than to the chief administrator of the facility by registered mail. The appellant contends that the trial court's judgment is void because of this failure to comply with the service provisions of § 217.835.2.
The appellant is raising the issue of service of process and personal jurisdiction for the first time on appeal. However, Rule 55.27(g) provides, in pertinent part:
(1) A defense of:
(C) Insufficiency of service of process
. . .
is waived if it is:
(A) Omitted from a motion in the circumstances described in Rule 55.27(f),2 or
(B) Neither made by motion under this Rule 55.27 nor included in a responsive pleading.
Thus, the appellant waived his claim that the trial court lacked personal jurisdiction due to the insufficiency of the service of process, as provided in § 217.835.2. See In Interest of J.D.B., 836 S.W.2d 520, 521 (Mo.App.1992); State ex rel. Buffington v. Gaertner, 657 S.W.2d 957, 958 (Mo. banc 1983).
Point denied.
In Point II, the appellant claims that "[t]he trial court erred in granting respondent's Petition for Reimbursement under the Missouri Incarceration Reimbursement Act, Section 217.825 through 217.845, RSMo.2000, in that the state lacked legal authority to grant respondent's petition." The fact that the appellant is proceeding pro se does not excuse him from complying with the briefing requirements of Rule 84. Boyer v. City of Potosi, 77 S.W.3d 62, 68 (Mo.App.2002). Point II fails to substantially comply with Rule 84.04(d), governing proper Points Relied On (PRO).
Rule 84.04(d)(1) provides:
(1) Where the appellate court reviews the decision of a trial court, each point shall:
(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant's claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: "The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error]."
Thus, the rule requires that a proper PRO must: (1) identify the ruling or action of the trial court that is being challenged on appeal; (2) state the legal reason or reasons for the claim of reversible error; and (3) explain in summary fashion why, in the context of the case, the legal reason or reasons support the claim of reversible error. Lombardo v. Lombardo, 120 S.W.3d 232, 247 (Mo.App.2003). Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made. Franklin v. Ventura, 32 S.W.3d 801, 803 (Mo.App.2000). The failure to comply with Rule 84.04(d) warrants dismissal of the appeal. Young v. Ernst, 113 S.W.3d 695, 697 (Mo.App.2003).
The appellant's PRO in Point II fails to explain in summary fashion why, in the context of this case, the legal reason or reasons support the claim of reversible error. His PRO is nothing more than an abstract statement of the law, which is unacceptable in satisfying the requirements of Rule 84.04(d). Lombardo, 120 S.W.3d at 247. This alone would be...
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City of Perryville v. Brewer
...appellate courts do not become advocates by inferring facts and arguments that the appellant failed to assert. State ex rel. Nixon v. Koonce, 168 S.W.3d 656 (Mo.App. W.D.2005). This Court may exercise its discretion to dismiss the appeal due to briefing errors where the deficiencies impede ......