State v. Hellems

• Court: Missouri Court of Appeals
• Citation: State v. Hellems, 13 S.W.3d 302 (Mo. App. 2000)
• Decision Date: 25 January 2000
• Parties: (Mo.App. E.D. 2000) State of Missouri, Plaintiff/Appellant, v. Arnold Hellems, Defendant/Respondent. Case Number: ED76107 Missouri Court of Appeals Eastern District Handdown Date: 0

13 S.W.3d 302 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court

State of Missouri, Plaintiff/Appellant, v. Arnold Hellems, Defendant/Respondent.

Case Number: ED76107

Missouri Court of Appeals Eastern District

Handdown Date: 01/25/2000

Appeal From: Circuit Court of St. Louis County, Hon. Sandra Farragut-Hemphill

Counsel for Appellant: Mark Thomas Bishop

Counsel for Respondent: Michael Joseph Mettes

Opinion Summary: The state of Missouri appeals the judgment granting Hellems a dismissal with prejudice for violating his right to a speedy trial.

REVERSED AND REMANDED.

Division Two holds: (1) The state may appeal pursuant to section 547.200.2, because the risk of double jeopardy is not implicated. (2) A hearing was not held on Hellems' amended motion. Unlike argument regarding a violation of the Uniform Mandatory Disposition of Detainers Act, a four-part analysis is necessary to determine whether a defendant has been denied his constitutional right to a speedy trial. The state must be given the opportunity to address this issue. The cause is remanded for hearing to determine whether Hellems' constitutional right to a speedy trial has been violated.

Opinion Author: Sherri B. Sullivan, Judge

Opinion Vote: REVERSED AND REMANDED. Crane, P.J., and R. Dowd, J., concur.

Opinion:

State of Missouri ("Appellant") appeals from a judgment and order granting Respondent Arnold Hellems' ("Respondent") Amended Motion to Dismiss with prejudice for violating Respondent's right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution, made applicable to Appellant by the Fourteenth Amendment, and by Article I, section 18(a) of the Missouri Constitution. We reverse and remand.

On December 8, 1997, Respondent was charged by information with Assault in the Third Degree, a class A misdemeanor in violation of Section 565.070.¹ On June 1, 1998, Respondent filed a Demand for Trial Pursuant to the Sixth Amendment of the United States Constitution, Article I, section 18(a) of the Missouri Constitution and RSMo Section 217.450.1 (Cum Supp 1996).

On March 15, 1999, the trial court heard partial oral arguments on Respondent's Motion to Dismiss for Violation of Uniform Mandatory Disposition of Detainers Act, Section 217.450 RSMo. This evidentiary hearing was off the record and was continued on the record on March 19, 1999. At the March 19 hearing, the trial court gave Respondent until March 22, 1999, to submit certified records from the Department of Corrections. On March 22, the court granted Respondent until March 26 to submit the records. Also on March 22, Respondent formally filed his Motion to Dismiss.

On March 26, 1999, Respondent filed an Amended Motion to Dismiss that incorporated the constitutional provisions under which Respondent had made his Demand for Trial. Respondent also filed the documents that he received from the Missouri Department of Corrections. On April 19, 1999, the trial court entered a judgment and order denying Respondent relief under the Uniform Mandatory Disposition of Detainers Act but granting Respondent's Amended Motion to Dismiss with prejudice based on a violation of Respondent's right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution, made applicable to Appellant by the Fourteenth Amendment, and by Article I, section 18(a) of the Missouri Constitution.

On April 23, 1999, Appellant filed a Motion to Reconsider Dismissal With Prejudice which was denied on April 29 because the trial court no longer had jurisdiction to rule on the matter in that the discharge of Respondent effectively terminated the case and withdrew jurisdiction from the trial court. See State v. Bibb, 922 S.W.2d 798, 800-801 (Mo.App. E.D. 1996).

Respondent contends that all three of Appellant's Points Relied On do not comply with Rule 30.06(d).² However, we may rule on the merits of the appeal when the issues in question are clear and can be found somewhere else in the brief. State v. Nathan, 992 S.W.2d 908, 909 (Mo.App. E.D. 1999). Thus, we choose to review the points ex gratia.

Additionally, although the parties do not address the issue, it is important to note that the state has no right of appeal in a criminal case unless that right is expressly conferred by statute. State v. Morton, 971 S.W.2d 335, 339 (Mo.App. E.D. 1998). Section 547.200.2 allows the state to appeal "in all other criminal cases except in those cases where the possible outcome of such an appeal would result in double jeopardy for the defendant." In pre-trial proceedings, jeopardy does not attach unless a question of the defendant's guilt or innocence is involved. Morton, 971 S.W.2d at 339. Therefore, because the question of Respondent's guilt or innocence was not involved in his Amended Motion to Dismiss, the risk of double jeopardy was not implicated, and Appellant may appeal pursuant to Section 547.200.2.

Appellant's point one on appeal argues that the trial court clearly erred in granting Respondent's Amended Motion to Dismiss because the ruling violated Rule 20.01(d) in that Appellant did not have an opportunity to respond to the Amended Motion to Dismiss.

Rule 20.01(d) provides in part: "A written motion... and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by law or court rule or by order of the court."

A bifurcated hearing on Respondent's original Motion to Dismiss was held on March 15 and March...