State v. Laramore

• Decision Date: 17 March 1998
• Docket Number: No. 70852,70852
• Citation: 965 S.W.2d 847
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Dennis LARAMORE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 847

965 S.W.2d 847

STATE of Missouri, Plaintiff-Respondent, v. Dennis LARAMORE, Defendant-Appellant.

No. 70852.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 17, 1998.

Rosalynn Koch, Asst. Public Defender, Columbia, for defendant-appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Fernando Bermudez, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HOFF, Judge.

Dennis Laramore (Defendant) appeals the judgment entered on his conviction by a jury of second degree burglary, section 569.170 RSMo 1986, and stealing, section 570.030 RSMo 1986. The court found Defendant was a prior and persistent offender, section 558.016 RSMo Cum.Supp.1993, and sentenced him to consecutive terms of ten years and five years, respectively.

On November 18, 1997, this Court filed an opinion reversing and remanding with instructions to the trial court to dismiss the charges with prejudice and discharge Defendant. This case was transferred in a dissenting opinion by Honorable Robert G. Dowd, Jr. to the Missouri Supreme Court pursuant to Rule 83.01. Judge Dowd dissented due to a conflict between the court of appeals districts as to whether section 217.450 RSMo 1994 ¹ required a detainer to be filed in order to invoke the protections of the UMDDL. On December 23, 1997, Defendant's motion to retransfer to the Court of Appeals or, in the alternative, for appointment of a special master was treated by the Missouri Supreme Court as a motion for leave to file a supplemental legal file and was sustained. The supplemental legal file included a copy of the detainer lodged against defendant in this case. On February 19, 1998, the Missouri Supreme Court retransferred the case to this Court.

In his first point on appeal, Defendant contends the trial court erred in denying his motion to dismiss. Defendant argues the trial court lacked jurisdiction to try him because the State of Missouri (State) failed to bring him to trial within 180 days as required by section 217.460. Because this point is dispositive, we will not address the other points Defendant raises on appeal.

When applicable, the UMDDL requires the trial court to dismiss with prejudice any pending indictment, information or complaint not brought to trial within 180 days. Section 217.460. Certain procedural requirements must, however, be satisfied before the UMDDL's time limitation applies. Section 217.450.1 of the UMDDL states:

1. Any person confined in a department correctional facility may request a final disposition of any untried indictment, information or complaint pending in this state against him while so imprisoned. The request shall be in writing addressed to the court in which the indictment, information or complaint is pending and to the prosecuting attorney charged with the duty of prosecuting it, and shall set forth the place of imprisonment.

State argues section 217.450.1 requires the filing of a detainer and because Defendant did not present any evidence that State filed a detainer against him, he is not entitled to the protections under the UMDDL. However, because the Missouri Supreme Court permitted the filing of a copy of the detainer lodged against Defendant in this case, State's argument here is no longer relevant and will not be discussed further.

To ascertain whether Defendant invoked his rights under the UMDDL, we must look to the available record. The record reveals the following. Defendant was charged with second degree burglary and stealing by a complaint filed on April 12, 1994 in the Associate Division of the Circuit Court of Gasconade County, Missouri. Defendant's trial began on April 26, 1996.

According to the supplemental legal file, the detainer was lodged against Defendant on August 26, 1994. Defendant filed a Request for Disposition of Indictments, Informations or Complaints (Request) on October 26, 1994. The Request stated Defendant was confined at the Algoa Correctional Center. Defendant addressed his Request to the Associate Division of the Circuit Court of Gasconade County, the court in which his complaint was then pending, and to Mr. John Berkemeyer, the prosecuting attorney charged with the duty of prosecuting the complaint. Therefore, Defendant's Request fully complied with all of the requirements of section 217.450.1 of the UMDDL.

Section 217.455 of the UMDDL states that the Request required by section 217.450 shall be delivered to the director of the division of adult institutions (director) who shall:

(1) Certify the term of commitment under which the offender is being held, the time already served, the time remaining to be served on the sentence, the time of parole eligibility of the offender, and any decisions of the state board of probation and parole relating to the offender; and

(2) Send by registered or certified mail, return receipt requested, one copy of the request and certificate to the court and one copy to the prosecuting attorney to whom it is addressed.

Because this provision requires the director to certify and send the Request, it is clear that once the offender delivers a Request to the director, the burden of compliance with this section is on the director, not the offender. See State v. Walton, 734 S.W.2d 502, 503 (Mo. banc 1987).

In this case, the copy of the Request available in the record contains the information required by section 217.455. Therefore, it is clear the director received Defendant's Request. Furthermore, the Request and certification (Certificate) in the record before us indicates that the trial court received the Certificate at least by October 26, 1994, the file-stamped date on top of the Certificate. Typing along the bottom of the Certificate provides that the white copy of the Certificate is distributed to the prosecuting attorney. While we are unable to discern the color of the copy in the record before us, it is clear that the director completed the certification of Defendant's Request and sent the completed Certificate to the court. It is reasonable to assume that if the director complied with this portion of the statute by mailing this Certificate to the court, then he also mailed the proper copy of the Certificate to the prosecuting attorney to whom the Request was addressed. Furthermore, nothing in the record indicates that the prosecuting attorney did not receive Defendant's Certificate. Accordingly, the record establishes compliance with the requirements of section 217.455.

Section 217.460 of the UMDDL provides:

Within one hundred eighty days after receipt of the request and certificate, pursuant to sections 217.450 and 217.455, by the court and the prosecuting attorney or within such additional necessary or reasonable time as the court may grant, for good cause shown in open court, the offender or his counsel being present, the ... complaint shall be brought to trial. The parties may stipulate for a continuance or a continuance may be granted if notice is given to the attorney of record with an opportunity for him to be heard. If the ... complaint is not brought to trial within the period, no court of this state shall have jurisdiction of such ... complaint, nor shall the untried ... complaint be of any further force or effect; and the court shall issue an order dismissing the same with prejudice.

Based on the record before this Court, Defendant's Certificate was received by the trial court and the prosecuting attorney on October 26, 1994. October 26, 1994 triggers the statutory period and requires State to bring Defendant to trial within 180 days. The plain language of the UMDDL mandates the dismissal of a complaint not brought to trial within 180 days unless the 180 day period is tolled. State v. Schmidt, 860 S.W.2d 396, 397 (Mo.App. E.D.1993).

The burden of proving that the 180 day limitations period under the UMDDL should be extended is on the state. State of Missouri ex rel. Vance Roy Clark v. Honorable Douglas E. Long, 870 S.W.2d 932, 940 (Mo.App. S.D.1994). There are several means by which this period may be tolled. State v. Walker, 795 S.W.2d 628, 629 (Mo.App. E.D.1990). First, "for good cause shown in open court, the [offender] or his counsel being present," the trial court may grant "additional necessary or reasonable time." Id.((quoting section 217.460). A delay resulting from a crowded docket is not considered "good cause" for extension of the 180 day period under the UMDDL. State v. Galvan, 795 S.W.2d 113, 119 (Mo.App. S.D.1990). Second, "the parties may stipulate for a continuance." Third, "a continuance may be granted if notice is given to the attorney of record with an opportunity for him to be heard." Waeker, 795 S.W.2d. 629 (quoting section 217.460). This third way of tolling the statutory period has two requirements. Id. at 630. First, defendant's attorney must be given notice of the request for continuance. Id. Second, defendant's attorney must be given an opportunity to be heard on the request before the court rules on it, as defendant is entitled to an opportunity to oppose the state's request. Id. Additionally, any delay of a defendant's trial resulting from the defendant's affirmative action is excludable from the 180 day period. Galvan, 795 S.W.2d at 118.

We must review the course of proceedings before the trial court to ascertain whether Defendant was timely tried. Here, according to the trial court's docket sheets, the...