State v. Bachman, WD
| Decision Date | 05 June 1984 |
| Docket Number | No. WD,WD |
| Citation | 675 S.W.2d 41 |
| Parties | STATE of Missouri, Appellant, v. Dale Leon BACHMAN, Respondent. 35299. |
| Court | Missouri Court of Appeals |
John Ashcroft, Atty. Gen. and John M. Morris, Asst. Atty. Gen., Jefferson City, for appellant.
John H. Norton of Norton, Pollard & Norton, Inc., Kansas City, for respondent.
Before LOWENSTEIN, P.J., and MANFORD and BERREY, JJ.
This is a civil action in which the appeal is from a judgment in the form of an order to close records. The appeal is made pursuant to § 512.020, RSMo 1978. The judgment is reversed.
The present action, while civil in nature, finds its origin in a previous criminal prosecution and presents a unique issue for this court.
On June 5, 1978, respondent entered his plea of guilty to the charge of stealing by deceit a sum in excess of fifty dollars, in violation of § 560.156 and § 560.161, RSMo 1969. 1 Two other criminal charges were nolle prossed and are not involved in the instant proceedings. On July 13, 1978, the circuit court sentenced respondent to three years imprisonment, suspended execution of sentence, and placed respondent on five years probation. Respondent was discharged from probation on May 9, 1980. On July 20, 1983, the Governor granted respondent a pardon. On August 4, 1983, respondent filed his motion for an order, declaring the records closed. A brief record on respondent's motion was made and the circuit court ordered:
And the court, after hearing the evidence adduced, does find that said Order should be granted.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Clerk of the Circuit Court of Clay County, Missouri, close the records in the above numbered case so that they will be inaccessible to the general public or other persons except the defendant, and further that said records shall be removed from the records of the Court, administrative agencies and law enforcement agencies which are available to the public and shall be kept in separate records which are to be held confidential, and where possible, pages of the public record shall be retyped or rewritten omitting those portions of the record which deal with the Movant's case and, if retyping or rewriting is not feasible because of the permanent nature of the record books, such record entries shall be blacked out and recopied in a confidential book."
Appellant then proceeded to bring the instant appeal.
Appellant (State of Missouri) presents two points, which in summary charge that the circuit court erred in entering its order closing the records, because (1) the circuit court was without jurisdiction after respondent's discharge from probation and said order of closure was entered more than three years after that time, and (2) the circuit court lacked personal jurisdiction over indispensable parties to the action for closure.
Respondent meets appellant's above contentions by urging that the circuit court did not err in ordering closure, because the circuit court was exercising its inherent powers in light of the gubernatorial pardon, and the circuit court did not lack jurisdiction over indispensable parties as they were represented by an assistant prosecutor who, on the record, waived any objection to the closure order.
Appellate courts, in cases ordering reversal, do not always address all of the points presented by the parties. This practice is followed for judicial expediency, as well as to reduce time and cost to litigants and members of the Bar. On occasion, a particular case presents issues for the first time which dictates a full discussion of all issues raised by both parties. The instant case is just such a case.
Appellant's point (1) challenges the jurisdiction of the circuit court to enter its order of record closure, because said order was entered more than three years after the criminal conviction and sentencing, which served as the basis for the order. Appellant cites to State ex rel. Wagner v. Ruddy, 582 S.W.2d 692 (Mo. banc 1979) as controlling.
The present action was instituted by the filing of a motion by respondent in the prior criminal proceedings. The record reveals the same case number and also that the parties and the circuit court considered the motion as a part of, although perhaps ancillary to, the criminal proceedings. It is also obvious, although the particular statute is not recited or directly referenced in the proceedings, that the parties and the circuit court considered this to be a proceeding within the intent and purview of § 610.106, RSMo Supp.1981. Section 610.106 reads:
As an added note, § 610.120, RSMo Supp.1981 reads as follows:
Appellant challenges the jurisdiction of the circuit court to have even entertained respondent's motion and moreover, the circuit court's entry of its order, because the criminal case had been closed and the judgment (i.e., respondent's plea of guilty--sentence of three years--execution of sentence suspended--respondent placed on five years probation) had become final as of July 13, 1978, and since respondent filed this present motion over five years subsequent to the final July 13, 1978 judgment, the circuit court no longer had jurisdiction.
In considering appellant's challenge to the circuit court's jurisdiction and also the disposition of that point, it is necessary to answer certain questions which arise. First, was respondent entitled to proceed with such a claim pursuant to or within the meaning of § 610.106, and if not, why not? Second, does the fact that respondent received a gubernatorial pardon modify, nullify, or supercede the above statute or alternatively, just how does the pardon relate to respondent's claim for closure of his criminal records? Third, does respondent have any remedy and if so, is relief thereunder limited?
In addressing the first of the above questions, the answer thereto is simply that § 610.106, by its very wording, is limited to those cases wherein a person has, by the trial court, received a suspension of imposition of sentence prior to September 28, 1981. If respondent were otherwise entitled to proceed under or pursuant to § 610.106, he would obviously come within the prescribed statutory date since his conviction and sentencing occurred July 13, 1978. The distinguishing fact in the instant case, and the very fact which dictates a negative answer to the question, also provides the answer to why respondent's motion does not come within the statute.
Respondent herein received from the circuit court, subsequent to his plea of guilty, a sentence of three years confinement in the Missouri Department of Corrections. The execution of sentence was suspended. Stated another way, respondent herein received a suspended execution of sentence and not a suspended imposition of sentence as prescribed by § 610.106. At this point, it might be asked, is there any difference in a suspended imposition of sentence as compared with a suspended execution of sentence? The answer is yes. The difference is significant, particularly when jurisdiction of the courts must be considered as in the instant case. In a case involving the suspension of the imposition of sentence, there is an active criminal proceeding which is suspended. Such procedure has been referred to as a "hybrid in the law" and declared that such a proceeding "is not a final judgment", and "[b]ecause there is no final judgment, there can be no appeal from such an order," State ex rel. Peach v. Tillman, 615 S.W.2d 514, 517 (Mo.App.1981). Peach also points out that such an order "is not a conviction within the meaning of the Second Offender Act ... nor can it be used to impeach a witness..."
It follows that because of the nature of a suspended imposition of sentence case, the trial court, during the term of assessed probation, continues to have...
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