State v. Galvan
| Decision Date | 11 September 1990 |
| Docket Number | No. 16647,16647 |
| Citation | 795 S.W.2d 113 |
| Parties | STATE of Missouri, Appellant, v. Jeffrey L. GALVAN, Respondent. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Jefferson City, for appellant.
Ted M. Henson, Jr., Poplar Bluff, for respondent.
The trial court dismissed a five-count felony information against defendant Jeffrey L. Galvan because he was not brought to trial within 180 days after requesting disposition of the charges per the "Uniform Mandatory Disposition of Detainers Law," §§ 217.450-.485, RSMo 1986. 1 The state appeals per § 547.200.2, RSMo 1986. 2
The state presents one point relied on; it reads:
"The trial court erred in dismissing the charges ... based on the state's alleged failure to bring the defendant to trial within 180 days of receipt of [defendant's] request for speedy trial pursuant to § 217.460 because the record clearly demonstrates that the delay in the case was occasioned by the defendant's affirmative action, and thus the statute was effectively tolled and the 180-day period had yet to expire when the court dismissed the charges."
We address only the above point, 3 confining our recital of the facts to those essential for that purpose.
On August 6, 1988, defendant was a sentenced prisoner in the custody of the Department of Corrections and Human Resources, assigned to St. Mary's Honor Center, a "halfway house" in St. Louis. He left the facility that date and went to Doniphan, where he was arrested after allegedly committing a series of crimes.
The next day the prosecutor filed a five-count felony complaint. A warrant was issued--and presumably served--and bond was set at $75,000.
On August 10, 1988, defendant appeared with an assistant public defender before an associate circuit judge in Ripley County. The judge set the preliminary examination for August 17, 1988.
On August 17, 1988, defendant and his lawyer, together with the prosecutor, appeared before the same judge. On motion by the prosecutor, and without objection by defendant, the preliminary examination was rescheduled for September 7, 1988.
On August 31, 1988, defendant filed a motion for a psychiatric examination. The motion was sustained September 7, 1988.
The chronology of the ensuing events has been gleaned from the legal file and the transcripts of two hearings. 4
On September 12, 1988, a Ripley County deputy sheriff took defendant from the Ripley County jail to the Fulton Reception and Diagnostic Center. Defendant was delivered from there to the Missouri Training Center for Men at Moberly on October 6, 1988.
On October 12, 1988, defendant's lawyer filed a motion to withdraw the motion for psychiatric examination.
On a date unclear in the record, but no later than October 17, 1988, defendant sent a letter to one Ed Kimbrough of the "records section" at the Moberly institution. Defendant's letter inquired whether there were any detainers on file against him there. As there was no certified copy of the Ripley County warrant at the institution, Kimbrough, on October 17, 1988, responded: "No detainers on file."
Also on October 17, 1988, defendant's lawyer filed in the Associate Division of the Circuit Court of Ripley County a "Request for Speedy Trial," citing § 545.780, RSMo 1986, and the Sixth Amendment to the Constitution of the United States.
On October 19, 1988, the prosecutor and defendant's lawyer appeared before the associate circuit judge. Defendant's motion to withdraw his motion for psychiatric examination was granted.
On October 26, 1988, the judge set the preliminary examination for November 23, 1988.
On November 10, 1988, defendant filed in the Associate Division of the Circuit Court of Ripley County a pro se "Motion to Request Fast and Speedy Trial." The motion requested prompt disposition of the charges and cited, among other things, § 217.460, RSMo 1986, a part of the Uniform Mandatory Disposition of Detainers Law ("UMDDL"). Section 217.460 provided:
The prosecutor admittedly received a copy of defendant's pro se motion of November 10, 1988.
Explaining why he sent the motion directly to the court and the prosecutor instead of through corrections officials, 5 defendant said he was told by Kimbrough that because there was no detainer on file, defendant would have to file the motion on his own.
Defendant was brought from Moberly to Ripley County on November 23, 1988, and the preliminary examination was held. The associate circuit judge found probable cause to believe defendant had committed the five felonies with which he was charged. Defendant was bound over to appear December 5, 1988, before the circuit judge.
On November 30, 1988, defendant filed an application for change of judge and change of venue.
The prosecutor filed the information December 1, 1988.
On December 5, 1988, defendant, his lawyer, and the prosecutor appeared before the circuit judge, Honorable Rex A. Henson. Defendant's application for change of judge was granted. The circuit clerk was directed to notify the Supreme Court of Missouri and request assignment of a judge to rule on defendant's application for change of venue.
On December 14, 1988, the Supreme Court of Missouri assigned a circuit judge from another judicial circuit to rule on defendant's application for change of venue. A hearing on that matter was conducted January 18, 1989. The application was granted and the case was sent from Ripley County (Judicial Circuit 36) to Wayne County (Judicial Circuit 42). Defendant, who had been in the Ripley County jail since the preliminary examination, was taken to the Wayne County jail the date the change of venue was ordered. The original file was received in Wayne County January 20, 1989.
On January 26, 1989, defendant's lawyer filed a "Request for Speedy Trial" wherein defendant declared himself "ready for trial" and requested a speedy trial per § 545.780, RSMo 1986, and the Sixth Amendment to the Constitution of the United States.
The next activity occurred March 3, 1989, when defendant, his lawyer, and the prosecutor appeared before a circuit judge of Circuit 42. The case was "passed" to March 21, 1989, for "further proceedings" before the other circuit judge of Circuit 42. 6 On March 21, 1989, the latter judge set the case for trial May 19, 1989.
On April 13, 1989, defendant's lawyer filed a motion "to suppress the in and out-of-court identifications of defendant."
On May 1, 1989, defendant's lawyer filed an application for continuance averring defendant needed time to arrange for the presence of witnesses on the motion to suppress, some of whom were in the penitentiary. The motion stated that although defendant was in custody he had no objection to a continuance, and that he was ready for trial and willing to try the case whenever the court designated.
The application for continuance was heard the day it was filed (May 1, 1989). Defendant, his lawyer, and the prosecutor appeared. The court's docket entry reads:
"...
The next significant docket entries are:
"7-3-89 Cause set for trial Dec. 13, 1989.
7-10-89 Assigned to Ted M. Henson Jr.
7-24-89 Assigned to the Hon. A. J. Seier."
On October 17, 1989, Circuit Judge A. J. Seier conducted a hearing in the Circuit Court of Wayne County. The Ripley County prosecutor was present. Defendant appeared with lawyer Ted M. Henson, Jr.
At the start of the hearing defendant stated, "I got left with no counsel." According to defendant, the assistant public defender who had represented him since the case began "got fired, she married a convict." Defendant also said he did not understand how Judge Seier got assigned to the case.
Judge Seier explained he was asked by the Supreme Court of Missouri to accept assignment because the Supreme Court was led to believe defendant wanted a speedy trial and he (Seier) could try the case before December 13, 1989. Judge Seier stated he had set the trial for October 30, 1989.
This colloquy ensued:
"[Defendant]: Your Honor, that was back when I had an attorney that knew the case. It wouldn't be in my best interest to go with a speedy trial issue. I would almost have to use that 180 day rule waiver, where you can waive the 180 day rule to give your attorney time to research it....
I don't know this man, this man is the prior judge's cousin, I believe he told me, uncle, or other close kin. Judge Henson out of Doniphan, is this man's cousin. I fear this man.
....
The Court: I'm trying to find out what exactly you want me to do?
[Defendant]: Waive the 180 day rule and give me time to get appointed counsel or I'll hire one. I will get my family to hire one...."
Judge Seier stated lawyer Henson was appointed by the Public Defender Commission because defendant's other lawyers "withdrew for [one] reason or another."
After further discussion Judge Seier stated he would continue the case to October 30, 1989. The judge instructed defendant to notify...
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...to a continuance. Thus, the period from June 19, 1989 to August 14, 1989 must be excluded from the 180 day period. Id. State v. Galvan, 795 S.W.2d 113 (Mo.App.1990). Accordingly, the court did not lose jurisdiction to try Juror Bias During trial, out of the presence of the jury, the bailiff......
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...based on his constitutional right to a speedy trial and [sec.] 545.780, the speedy trial statute"). See also State v. Galvan, 795 S.W.2d 113, 117-18 (Mo.App. S.D.1990) (delays under sec. 217.460, the Uniform Mandatory Disposition of Detainers Law, should be calculated based on "the day defe......