State v. Sharp

• Decision Date: 31 May 2011
• Docket Number: No. WD 71895.,WD 71895.
• Citation: 341 S.W.3d 834
• Parties: STATE of Missouri, Respondent,v.Paul SHARP, Appellant.
• Court: Missouri Court of Appeals

341 S.W.3d 834

STATE of Missouri, Respondent,

v.Paul SHARP, Appellant.

No. WD 71895.

Missouri Court of Appeals, Western District.

May 31, 2011.

Craig Allan Johnston, Columbia, MO, for appellant.

Shaun J. Mackelprang and Daniel McPherson, Jefferson City, MO, for respondent.Division Four: LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., J., and PATRICIA JOYCE, SP.J.JAMES M. SMART, JR., Judge.

Paul Sharp appeals from a conviction after a bench-trial for second-degree assault on a corrections officer. Sharp was sentenced to a four-year term of imprisonment to be served concurrently with a sentence he already was serving. We affirm in part, reverse in part, and remand for resentencing.

Statement of Facts

On June 29, 2007, Corrections Officer Terri Krull observed inmate Paul Sharp smoking a cigarette in an outdoor yard at the Western Reception Diagnostic Correctional Center in St. Joseph. Krull had caught Sharp smoking in the same area the previous day and had warned him that it was a non-smoking area. When Krull saw Sharp smoking again, she asked for his ID card and Sharp handed it to her. Krull told Sharp to put out his cigarette, but he instead walked away with the cigarette still lit. Sharp ignored Krull's orders to come back. A sergeant standing nearby told Sharp to obey Krull's orders. Sharp walked back over to Krull. Krull extended her hand as she ordered Sharp to put out his cigarette and give it to her. Instead, Sharp smashed the lit cigarette into the palm of Krull's hand causing a blister. Krull saw a doctor and was prescribed medication. Sharp was initially charged in August 2007 with the Class C felony of second-degree assault under section 565.060, RSMo 2000. ¹

On November 17, 2008, Sharp filed a pro se “Motion for a Speedy Trial/180 Writ or Disposition of Warrant(s), Information or Indictment(s)” to invoke his right to a speedy trial under the provisions of the Uniform Mandatory Disposition of Detainers Law (UMDDL), sections 217.450–217.485, RSMo 2000. At the time, Sharp was incarcerated at the Northeast Correctional Center in Bowling Green, Missouri. On November 20, 2008, the prosecutor filed a writ of habeas corpus ad prosequendum. The docket sheet reflects that a detainer was sent to the Buchanan County Sheriff's Department and the Northeast Correctional Center on December 24, 2008. It also shows an entry of appearance by defense counsel on that same date. On February 3, 2009, an information was filed charging the same offense as alleged in the initial complaint. An arraignment was scheduled, and Sharp entered a plea of not guilty on February 23, 2009.

On March 3, 2009, defense counsel filed a motion for discovery. On March 24, 2009, a trial date was set for September 8, 2009. In preparation for trial, defense counsel filed motions to compel disclosure of discovery and for bond reduction on June 19. A hearing was set for July 2, 2009. On June 25, defense counsel filed a motion to dismiss with prejudice, alleging that the State failed to comply with Sharp's right to a speedy trial ² by not trying him within 180 days. After a hearing, the motions were denied. In October 2009, the trial date was rescheduled for December 21, 2009. The prosecutor filed an amended information on December 4, 2009, charging Sharp with an alternative count for second-degree assault under section 565.082, RSMo, also a class C felony.

Sharp waived his right to a jury trial and was tried by Judge Daniel F. Kellogg in the Circuit Court of Buchanan County on December 21, 2009. At the close of the State's evidence, the trial court granted Sharp's motion for judgment of acquittal on Count I of the amended information (second-degree assault under section 565.060), finding that the lit cigarette was not a “dangerous instrument” in this case. At the close of all of the evidence, the court found Sharp guilty of the alternative count of second-degree assault on a corrections officer and sentenced him to four years in prison, to be served concurrently to his existing sentence. Sharp appeals.

Point I

In his first point, Sharp claims the trial court erred in denying his motion to dismiss in violation of his due process rights and right to a speedy trial, because the court exceeded its authority in violation of the Uniform Mandatory Disposition of Detainers Law (UMDDL). He argues that he properly invoked the provisions of the UMDDL and that the State failed to bring him to trial within the 180–day time period.

Standard of Review

Whether a criminal case should be dismissed based on the UMDDL is a question of law which the court reviews de novo. State v. Nichols, 207 S.W.3d 215, 219 (Mo.App.2006). To the extent the application of law is based on the evidence presented, the facts are viewed in the light most favorable to the judgment, with due deference given to the trial court's factual findings. State v. Lybarger, 165 S.W.3d 180, 184 (Mo.App.2005).

Analysis

In order to determine whether Sharp complied with the provisions of the UMDDL, we must look at the statutory language of sections 217.450–217.460 in effect at the time. Under the UMDDL, an inmate may request a final disposition of any untried charges when a detainer has been lodged against him. Section 217.450.1, RSMo 2000.

Any person confined in a department correctional facility may request a final disposition of any untried indictment, information or complaint pending in this state on the basis of which a detainer has been lodged 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.

Id. (Emphasis added.)

The request provided for in section 217.450 shall be delivered to the director, who shall forthwith:

(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.

Section 217.455, RSMo 2000. (Emphasis added.)

Within one hundred eighty days after the 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 indictment, information or 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 indictment, information or complaint is not brought to trial within the period, no court of this state shall have jurisdiction of such indictment, information or complaint, nor shall the untried indictment, information or complaint be of any further force or effect; and the court shall issue an order dismissing the same with prejudice.

Section 217.460, RSMo 2000. (Emphasis added.)

In order to trigger the 180–day time limit, a defendant must show that he made a good faith effort and substantially complied with the procedural requirements of the UMDDL. See Dillard v. State, 931 S.W.2d 157, 164 (Mo.App.1996). A fundamental procedural requirement is that a written demand for speedy disposition be addressed to the court and the prosecuting attorney where the charges are pending. Id. at 164–65.

In this case, Sharp contends that he substantially complied with the UMDDL when he filed his pro se motion for speedy trial on November 17, 2008. He claims that once the circuit court and prosecutor received his request and a detainer was filed, the State had 180 days to bring him to trial. Sharp argues that the trial court lost authority to try him, because the 180–day time limit expired before he was brought to trial, and, therefore, his conviction and sentence should be vacated and the assault charge dismissed with prejudice.

The State, on the other hand, argues that Sharp's pro se motion for speedy trial filed in November 2008 was ineffective, because there was no proof that Sharp sent a copy of his request to the prosecuting attorney and there was no detainer lodged against him at that time.

We first address the issue of whether the prosecuting attorney received Sharp's request for speedy trial. The defendant has the burden of proving that the prosecuting attorney received his request for disposition. State v. Merrick, 219 S.W.3d 281, 285 (Mo.App.2007). Sharp claims that the record suggests that the prosecutor had notice of his speedy trial request, because the State filed a writ of habeas corpus ad prosequendum (Sharp was then in the Northeast Correctional Center at Bowling Green) three days after his request. Our review of the docket sheet confirms this. Based upon this entry, we conclude that we may assume the prosecutor had notice of Sharp's request. ³

We must also determine, in accordance with the statutory language, whether Sharp substantially complied with the procedural requirements of the UMDDL when he filed his request for speedy trial before a detainer was lodged against him.

The legislative intent of the statute is to be determined from the statutory language. State v. Wahby, 775 S.W.2d 147, 151 (Mo. banc 1989). The language of the statute should be considered in its plain and ordinary meaning. Id. The legislature is presumed to have intended what the statute says, and if the language used is clear, there is no room for construction beyond the plain meaning of the law. See State v. Thesing, 332 S.W.3d 895, 897–98 (Mo.App.2011).

In support of its argument that a detainer was required to be...