State ex rel. Wickline v. Casteel

• Decision Date: 01 May 1987
• Docket Number: No. 15050,15050
• Citation: 729 S.W.2d 56
• Parties: STATE of Missouri ex rel. Lee Odith WICKLINE, Relator, v. Honorable Herbert C. CASTEEL, Respondent.
• Court: Missouri Court of Appeals

Page 56

729 S.W.2d 56

STATE of Missouri ex rel. Lee Odith WICKLINE, Relator, v. Honorable Herbert C. CASTEEL, Respondent.

No. 15050.

Missouri Court of Appeals,

Southern District,

Division Two.

May 1, 1987.

Lee Odith Wickline, pro se.

David C. Dally, Pros. Atty., Jasper County, Joplin, for respondent.

ORIGINAL PROCEEDING IN PROHIBITION

PER CURIAM:

Relator ("Wickline") is the defendant in criminal proceedings pending in Jasper County. He is now charged with second-degree burglary with regard to an incident which occurred on October 28, 1981.

Following that incident, Wickline was promptly arrested and charged with second-degree burglary, and an information to that effect was filed following a preliminary hearing. On December 14, 1981 the information was amended to change the charge to first-degree burglary. Immediately prior to trial, a second amended information, again alleging first-degree burglary, was filed. Wickline was convicted and, in due course, sentenced on the first-degree burglary charge.

An appeal was taken, and this court affirmed the conviction. State v. Wickline, 647 S.W.2d 929 (Mo.App.1983). In early 1985, Wickline filed a motion pursuant to Supreme Court Rule 27.26 alleging that the state had improperly amended the information to charge a different and greater offense. The hearing court agreed with this contention and vacated the conviction. The state appealed, and this court affirmed, holding that there was jurisdictional error in trying Wickline on an information amended to charge an additional or different offense in violation of Rule 23.08 and § 545.300. It was also stated that the trial of Wickline was a "nullity". Wickline v State, 718 S.W.2d 604, 605 (Mo.App.1986). ¹ The opinion concluded with directions that the cause be "remanded for further proceedings in the trial court."

It is presently alleged by Wickline that upon his return to Jasper County, he was again charged, on December 22, 1986, with first-degree burglary. This resulted in Wickline filing his pro se petition in prohibition with this court seeking to prohibit his being tried on either first or second-degree burglary in view of the three-year statute of limitations established by § 556.036.2(1), RSMo 1978. Wickline also asserts that he cannot now have a fair trial because of the passage of time resulting from what he deems to be prosecutorial misconduct. As we understand it, Wickline contends that he has been substantially prejudiced by the loss of potential witnesses so that prosecution should be barred even if his primary contention about limitations is unfounded.

Respondent, by the prosecuting attorney of Jasper County, informed this court in opposing the issuance of a preliminary order that, on January 20, 1987, a newly amended charge had been filed regarding the 1981 incident and alleging the commission of burglary in the second degree. Our preliminary order in prohibition issued on January 30, 1987.

Wickline's commendably drafted pro se brief recognizes that the basic issue on the limitations question is whether the tolling provisions of the statute come into play in view of the fact that substantially more than the statutory period of three years passed between the invalid amendment of the information and the commencement of the present renewal of prosecution. Section 556.036.6 provides:

The period of limitation does not run:

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(3) During any time when a prosecution against the accused for the offense is pending in this state.

Wickline argues there was no charge pending against him for the space of over five years. In taking this position, the relator correctly realizes that he must dispel two possibilities: (1) that the original charge of second-degree burglary has remained continuously pending despite the intervening, and impermissible, upgrading of the charge and void conviction thereon, and (2) that the apparent pendency of first-degree burglary as of December 14, 1981, was, despite its impropriety, nonetheless sufficient to toll the time so as to permit a current prosecution for the offense of second-degree burglary. We believe that since the first of these correctly describes Wickline's situation, we need not reach the second.

As was observed by this court in Wickline v. State, supra, the amendment of December 14, 1981, was a nullity, as were all subsequent proceedings based on that amendment. State v. Gladies, 456 S.W.2d 23 (Mo.1970), and State v. Thompson, 392 S.W.2d 617 (Mo.1965), along with other cases, were cited in support.

In Gladies, a purported amendment to an information not only charged a distinct and different crime, but was also declared to be a nullity since an element of the purported charge was omitted. The court stated that in legal contemplation the second charge was never pending. No limitations question was raised in Gladies, but in its dispositional remarks the court mentioned that options available to the prosecution might depend in part on "any possible question of limitations". See also State v. Amerson, 661 S.W.2d 852, 853 (Mo.App.1983). Wickline notes this language in his present argument. This wording was derived from the Thompson case. There, upon holding that an attempted amendment of an information ran afoul of the restriction against charging a different crime, the court stated:

"Under the authority of § 545.110 and the cases of State v. Melvin, 166 Mo. 565, 66 S.W. 534, and State v. Mayer, 209 Mo. 391, 107 S.W. 1085, the original information for attempted robbery was merely suspended, since it was not actually quashed as the statute permitted.

Although § 545.110 refers specifically to indictments, proceedings by indictment and by information are for many purposes interchangeable, and we regard the statute as applicable. Hence, upon the remand, the State may proceed further upon the original information, it may dismiss the cause and file a new information subject to any possible question of limitations, or it may proceed otherwise, as it may see fit. It may not proceed further in this cause on any charge except [the original charge]."

392 S.W.2d at 622. ²

It is clear, in context, that the reference to any question of limitations was in connection with the possibility the state might elect to proceed in a new cause with a properly filed information charging the different offense on which the state had been rebuffed after the improper amendment. We find no authority to indicate that the original information, though perhaps "suspended", is not "pending" for purposes of § 556.036.6. The contrary, in fact, seems especially appropriate where the amendment is found to be a legal nullity. We therefore hold that the original information charging second-degree burglary remained pending throughout all of the subsequent proceedings for limitations purposes, even though it may be deemed, in another sense, suspended because of the state's efforts to proceed on an amended information.

We also note that although the pendency only of a lesser-included offense will not toll the time as to a greater, and hence different, offense, State v. Priest, 660 S.W.2d 300, 307 (Mo.App.1983), the converse is not true as a lesser offense is deemed charged by the greater. § 556.046, RSMo 1978. Further, even though a charging instrument is so defective as to require dismissal, it remains effective for purposes of tolling the statute of limitations. State ex rel. Lodwick v. Cottey, 497 S.W.2d 873, 878 (Mo.App.1973). See also State v. Bullington, 680 S.W.2d 238, 240 (Mo.App.1984). Thus, while it is not necessary for us to decide the matter, it may well be that the amended information purporting to charge first-degree burglary did toll the statute.

Wickline, as mentioned, makes the further point that by mere passage of time he is so prejudiced in his ability to conduct a defense that the respondent should be prohibited from trying him. Indeed, he contends that prejudice is presumptively established, with no showing of actual prejudice needed, citing Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). That authority establishes that...