State v. Givance

• Decision Date: 20 May 1986
• Docket Number: No. 50224,50224
• Citation: 711 S.W.2d 941
• Parties: STATE of Missouri, Respondent, v. Ronald GIVANCE, Appellant.
• Court: Missouri Court of Appeals

Page 941

711 S.W.2d 941

STATE of Missouri, Respondent, v. Ronald GIVANCE, Appellant.

No. 50224.

Missouri Court of Appeals,

Eastern District,

Division Five.

May 20, 1986.

Motion for Rehearing and/or Transfer

to Supreme Court Denied

June 19, 1986.

William J. Shaw, Public Defender, Clayton, for appellant.

John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.

DONALD L. MANFORD, Special Judge.

This is a direct appeal from a jury conviction for burglary, first degree, in violation of § 569.160, RSMo 1978, and indecent exposure, in violation of § 566.130, RSMo 1978. Judgment affirmed.

Appellant's sole point charges that the trial court erred to his prejudice and over his objection in trying him when the trial court did not have jurisdiction to try him.

Appellant presents no challenge to the substantive merits of the cause, therefore permitting a summary account of the pertinent facts.

On May 4, 1984, appellant agreed to cut the lawn of one Mrs. Suelflow of University City, Missouri. Appellant did not appear on that date. On May 7, 1984, Mrs. Suelflow was awakened by the sound of a lawnmower. She then heard pounding and the breaking of glass. She investigated and found appellant standing naked in her living room.

Subsequent investigation by police determined that appellant had entered her home through a glass door and screen door. When observed by Mrs. Suelflow, appellant exposed his genitals to her. Appellant testified on his own behalf. The evidence closed. The jury returned its verdict. Judgment and sentence were entered. This appeal followed the overruling of timely filed post-trial motions.

The record reveals that from the outset and prior to trial appellant challenged the jurisdiction of the court to try him. The issue of jurisdiction was initiated by the trial judge. So that it can be better understood that the trial judge initiated the question and so that appellant's position can be clarified, the following excerpt from the record reads:

Let's see. The complaint was filed on May the 7th. Let's see. There was a preliminary hearing held on May the 16th. Defendant was bound over on the felony. The felony information was filed on May the 16th. And a Count II, indecent exposure was filed on May 16th. And a Count III, property damage third degree. Indecent exposure being a Class A misdemeanor. Property damage being a Class B misdemeanor.

Thereafter, on January the 8th, 1985, the case was assigned by presiding judge to Division 34.

Okay. For the record, is there any objections with the assignment by the presiding judge in light of the potential argument that Judge Corrigan has no authority as presiding judge?

MR. WALKER [Public defender]: Yes, Your Honor, Defendant does object.

THE COURT: What's your objection?

MR. WALKER: We're objecting that this Court does not have the jurisdiction to try this case on the grounds that, although a properly elected and presiding--presiding judge may properly assign a case to an associate circuit court in his circuit for a felony trial, that the present person, Judge Corrigan, was selected to a two-year term. By statute that term expires at the end of two years, and Judge Corrigan has not been properly re-elected as presiding judge. And, therefore, he's without--He's without the power to assign this case to this Court; and, therefore, this Court lacks the requisite jurisdiction.

THE COURT: Okay. Mr. Miller.

MR. MILLER [Prosecuting attorney]: Judge, I believe that his--Judge Corrigan's term has been extended by order of the Missouri Supreme Court. I think the Court has realized that the 21st Judicial Circuit cannot operate in a void, thus has taken this action. I think he is with power and jurisdiction to assign those cases to this Court, and the State has no objection to you hearing this matter.

THE COURT: Okay. Number one, there's been no order from the Supreme Court.

MR. MILLER: That was my understanding.

THE COURT: In any account--no. The facts of the case are that Judge Corrigan supported some rule changes that the associates said were unconstitutional and illegal and filed a lawsuit. There are 12 associates, and, I think, 12 circuit judges were the defendants therein. Thereafter, Judge Pratt, who was sent down to hear the case, ruled that the associates were right and that the election rules were invalid.

The defendants indicated they were going to appeal, and Judge Pratt entered an order finding all the rules illegal and unconstitutional but staying any election until the Supreme Court rule. Okay?

And in his stay order he also indicated that Judge Corrigan was to remain as presiding judge until such time as the Supreme Court acted.

There's some serious questions in my mind as to whether or not Judge Pratt had the authority to make that order. And in light of a case, and I don't remember the exact title, but the case is a Maryland Heights incorporation case, whereby similar type of thing--There was an election as to whether--The dispute was whether or not this should be an election for the incorporation of Maryland Heights. In that case the court ruled that the election would continue. He was asked to stay the election; he refused to stay the election. It was my understanding it went both to the Court of Appeals and the Supreme Court as to whether or not there was any authority to stay the election pending, following a decision that the election should proceed, and what rule should be followed staying that election. It was a question as to whether that election should be stayed.

And the decision in the--I'm not sure if it was Mandamus or prohibition whatever it was--but the end was that both the Court of Appeals and the Supreme Court said there was no authority to stay the election.

In light of that, I think Judge Pratt's order is probably illegal. Okay?

Now, what I'm faced with is, I'm a defendant in that lawsuit. Okay. I mean a Plaintiff in that lawsuit. And I guess, even if Judge Pratt has entered an illegal order, I'm bound by that illegal order until such time as somebody changes that illegal order.

My personal feeling is that, when this case--If this case were to go up on that point, Mr. Walker's probably right and that it should be found that I don't have any jurisdiction. Okay. I think I'm in a Catch 22 situation. I don't think--I either don't follow a statute or don't follow an order in a lawsuit that I'm a party to, and I think I have to follow that order even if I think that order is improper.

I think, what you may be doing is, you may be giving the Defendant a free ride. You may be in the situation where, if he pleads and goes to trial and is found not guilty, at that point in time I don't know how you're going to be raising the objection that there's no jurisdiction when you're now arguing that there is jurisdiction.

And, on the other hand, if he's found guilty, I think Mr. Walker may well get the thing set aside.

So, I think we're probably expending time and effort that may go down the tubes. But I'll hear the case because I'm not going to be said to say that I'm violating Judge Pratt's order in a case where I'm a party, even though I think--personally think the order's illegal. I think it probably contradicts that the ruling in the other case that I referred to, but I don't see my proceeding as jeopardizing the Defendant. I may be jeopardizing the State, but I don't see it jeopardizing the Defendant. If I thought it was jeopardizing the Defendant, I might look at it from a different point of view; but I think you may be giving him a free ride, Mark.

MR. MILLER: I understand, Judge.

THE COURT: Okay. So I'll hear the case; and if that was a motion you made, Mr. Walker, I'm going to overrule it.

MR. WALKER: Yes, Your Honor.

THE COURT: Okay. But I wanted to raise it so that, at least, it was on this record because there's been some discussion about it since the first of the year.

I think the statute clearly says that he's presiding judge for two years.

The foregoing not only depicts the issue now before this court, but it is an unequivocal statement of the position of the trial judge relative to the dispute within the Twenty-First Judicial Circuit.

For purposes herein, it is not necessary to recount the details involved in the Twenty-First Circuit dispute. For those interested in an account of those events, they are referred to in In the Matter of the Twenty-First Judicial Circuit, 659 S.W.2d 764 (Mo. banc 1983); Gregory v. Corrigan, 685 S.W.2d 840 (Mo. banc 1985), Nolan v. Stussie, 695 S.W.2d 869 (Mo. banc 1985), and In re Rules of the Circuit Court for the Twenty-First Judicial Circuit, 702 S.W.2d 457 (Mo. banc 1985).

Stated in the most simple terms, appellant asserts that the jurisdiction of an associate circuit judge is limited within Mo. Const. Article V, § 17 (as amended 1976), and §§ 478.225, 478.240, and 478.245, RSMo Supp.1985. He continues by stating that the constitution grants the jurisdiction previously granted to magistrate judges and associate circuit judges, and by other provisions permits the assignment of associate circuit judges to additional cases and classes of cases.

Referring to §§ 478.225, 478.240, and 478.245, appellant then asserts that the jurisdiction of associate circuit judges is limited by § 478.225 to preliminary matters regarding felony proceedings prior to the filing of the information, except as directed by § 478.240 and § 478.245. These sections read as follows:

478.225 Associate circuit judges, cases and matters within their jurisdiction

1. Each associate circuit judge who serves as the judge of the probate division of the circuit court may hear and determine all cases and matters within the probate division of the circuit court in the county for which he is an associate circuit judge.

2. Each associate circuit judge within the counties or city of St. Louis for which he is an associate circuit judge may hear and determine the following cases or classes of cases:

(...