State ex rel. Peach v. Tillman, 43828
| Decision Date | 10 March 1981 |
| Docket Number | No. 43828,43828 |
| Citation | 615 S.W.2d 514 |
| Parties | STATE of Missouri ex rel. George A. PEACH, Circuit Attorney, City of St. Louis, State of Missouri, Plaintiff, v. The Honorable Daniel T. TILLMAN, Judge of the Circuit Court of St. Louis, Missouri, Defendant. |
| Court | Missouri Court of Appeals |
James K. Steitz, Asst. Circuit Atty., St. Louis, for defendant.
Norman S. London, St. Louis, for plaintiff.
This is an original proceeding in prohibition in which plaintiff, the Circuit Attorney for the City of St. Louis, seeks our writ to prohibit defendant from enforcing his order closing and expunging all records of the arrest, trial, verdict and probation of Milton Kardesch, M.D. and enjoining the State of Missouri, its officers and agencies from use or disclosure of said records.
Milton Kardesch, M.D. was charged by a grand jury with the felony of Mingling Poison with Food or Medicine, § 559.150 RSMo 1969. On March 9, 1978, a jury found Dr. Kardesch guilty of the charge and assessed punishment at twelve years in the Missouri Department of Corrections. The defendant, on April 21, 1978, heard and overruled Dr. Kardesch's motion for new trial. On July 21, 1978, the trial court suspended imposition of sentence and placed Dr. Kardesch on probation for a period of five years, in accordance with § 549.071(1) RSMo 1969. 1 Dr. Kardesch filed a motion for termination of probation and for expungement of records and on January 6, 1981, the defendant found that the movant had fully complied with the terms of his probation and entered the following order:
Defendant refused to stay execution of his order and indicated that he would enforce the order which would result in immediate closure and expungement of the records enumerated in its order. This proceeding presents issues with respect to the effect of suspension of imposition of sentence that are of concern to the trial bench which cannot be reached by appeal. Our preliminary order issued.
Plaintiff's primary contention is that defendant exceeded its jurisdiction insofar as its order directs the State of Missouri, its officers and agencies to close and expunge all records with respect to the case of State v. Kardesch. Plaintiff argues that neither §§ 610.100, 610.105 RSMo 1978 nor the inherent equity powers of the court empower the court to make such an order.
We consider first the statutory provisions. They read as follows:
"610.100 Arrest records, closed, when expunged, when
If any person is arrested and not charged with an offense against the law within thirty days of his arrest, all records of the arrest and of any detention or confinement incident thereto shall thereafter be closed records to all persons except the person arrested. If there is no conviction within one year after the records are closed, all records of the arrest and of any detention or confinement incident thereto shall be expunged in any city or county having a population of five hundred thousand or more.
If the person arrested is charged but the case is subsequently nolle prossed, dismissed or the accused is found not guilty in the court in which the action is prosecuted, official records pertaining to the case shall thereafter be closed records to all persons except the person arrested or charged.
(L. 1973, p. 502, § 7.)"
There is clearly a distinction between these two sections. In § 610.100 RSMo 1978 provision is made for closure of all records of arrest and confinement if no charge is made within thirty days of the arrest. This section contemplates situations where no charge is made within the one year period of the closure or where a charge is made after the records have been closed and in such cases if no conviction occurs within one year after closure the records shall be expunged. This section makes a distinction between expungement and closure. Neither the pleadings nor the order of the court purport to bring this case within the terms of § 610.100 RSMo 1978.
The remedy available under § 610.105 RSMo 1978 is closure of "official records." Plaintiff urges us to hold that the records of the Circuit Attorney's office are not "official records" within the meaning of § 610.105 RSMo 1978. Because of the conclusion that we reach in this case we are not required to reach this issue.
The three instances in which the court may order closure of records under § 610.105 RSMo 1978 are when the case has been (1) nolle prossed, (2) dismissed or when (3) the accused has been found not guilty.
The trial court's order provided that Dr. Kardesch be fully discharged and that "the charge against (him) be dismissed." The issuance of our preliminary order raises the question of whether the trial court's order exceeded its jurisdiction. Before a court can order closure of official records the cause must have been concluded in one of the ways provided in § 610.105 RSMo 1978. We must first determine whether the court had authority to order dismissal of the charge against Dr. Kardesch.
In its original brief the plaintiff would waive the question of defendant's jurisdiction to dismiss the charge against Dr. Kardesch. It has been long held that "(j)urisdiction, or excessive jurisdiction, cannot be conferred by appearance or agreement" nor can it be waived by the parties to an action. State ex rel. Highway Commission v. McDowell, 236 Mo.App. 304, 152 S.W.2d 223 (1941). As a result of plaintiff's attempted waiver defendant did not have an opportunity to respond to the issue. The issue has since been briefed by the parties and we must consider this issue before we reach the matter originally briefed by parties.
This issue is closely related to another problem that is inherent in our consideration of this matter. The trial courts have had no direction by the legislature or by the appellate courts with respect to final disposition of those cases in which the court, as here, has suspended the imposition of sentence.
The statute in effect at the time the court suspended imposition of sentence granted the court power to suspend imposition of sentence and place the guilty person on probation. § 549.071 RSMo 1969. 2 Nothing is said of the nature and consequences of the suspended imposition of sentence. Suspension of imposition of sentence is a hybrid in the law. It is a suspension of active proceedings in a criminal prosecution. It is not a final judgment. State v. Gordon, 344 S.W.2d 69, 71 (Mo.1961). Because there is no final judgment, there can be no appeal from such an order. See State v. Harris, 486 S.W.2d 227 (Mo.1972). It has been held that it is not a conviction within the meaning of the Second Offender Act § 556.280 RSMo 1969; 3 State v. Gordon, supra, nor can it be used to impeach a witness under § 491.050 RSMo 1978. State v. Frey, 459 S.W.2d 359 (Mo.1970).
As stated in other jurisdictions, suspension of imposition of sentence is a matter of "grace, favor and forebearance." Pagano v. Bechly, 211 Iowa 1294, 1298, 232 N.W. 798, 800 (1930). Suspension of imposition of sentence is a salutary means of relieving a person who is guilty of a crime from the stigma of a conviction when the court in its discretion feels that the ends of justice warrant the court's forebearance.
Defendant argues that the suspension of imposition of sentence would subject the guilty person to the possibility of being sentenced at any time and for that reason the court is empowered to order dismissal of the charge to remove this damoclean sword.
Only the prosecuting authority has the power to nolle prosse or reduce a charge. State ex rel. Dowd v. Nangle, 365 Mo. 134, 276 S.W.2d 135 (1955). The court may dismiss a charge for lack of jurisdiction, for failure of the information or indictment to state a crime. See State ex rel. Corcoran v. Buder, 428 S.W.2d 935 (Mo.1968). It may also dismiss an action for failure to accord the defendant a speedy trial under constitutional or statutory provision. U.S.Const. VI Amendment, Mo. Const. Art. 1, § 18(a), § 545.780 RSMo 1978. There is no contention that the court lacked jurisdiction of the subject matter or of the person of the accused or that the indictment failed to state a crime or that defendant was not given a speedy trial. The trial court is also authorized to enter a judgment of acquittal when the State's evidence is not sufficient to prove the crime charged. Rule 27.07 formerly Rule 26.10. Once the State has passed the test of legal sufficiency the trial court is without authority to enter a judgment of acquittal. United States v. Brown, 587 F.2d 187 (5th Cir. 1979). The order of the trial court in this case dismissing the charge is based upon a finding of the court that defendant had "fully and completely complied with all...
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