State v. Sylmor-Slosberg, SYLMOR-SLOSBERG

• Decision Date: 13 October 1982
• Docket Number: SYLMOR-SLOSBERG
• Citation: 451 A.2d 302
• Parties: STATE of Maine v. Ruth
• Court: Maine Supreme Court

Page 302

451 A.2d 302

STATE of Maine v. Ruth SYLMOR-SLOSBERG.

Supreme Judicial Court of Maine.

Argued Sept. 8, 1982.

Decided Oct. 13, 1982.

Henry N. Berry, III, Dist. Atty., Peter J. Ballou (orally), Deputy Dist. Atty., Portland, for plaintiff.

Greenberg & Greenberg, Stanley Greenberg (orally), Portland, for defendant.

Before McKUSICK, C.J., and GODFREY, NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

McKUSICK, Chief Justice.

After a bench trial in Superior Court (Cumberland County), defendant Ruth Sylmor-Slosberg was convicted of operating a motorboat without a certificate of number, in violation of 12 M.R.S.A. § 7801(1) (1981), and was fined $75. She argues on appeal that certain irregularities at the outset of the proceedings in the District Court deprived that court, and hence the Superior Court and this court, of "jurisdiction." We reject her argument and affirm the judgment of the Superior Court.

On July 17, 1981, while boating on Sebago Lake, defendant was stopped by a game warden of the Department of Inland Fisheries and Wildlife. The warden handed her a document that for convenience we will here call the "warden's summons," which stated, "You are hereby summoned to appear in District Court at ... Portland [at 10:00 a.m. on July 24, 1981] to answer the complaint of oper. unreg. watercraft." On July 24, a complaint charging defendant with the July 17th violation of section 7801(1) was filed in the District Court, and defendant was arraigned on that complaint on August 12, pleading not guilty. After transferring her case to the Superior Court pursuant to D.C.Crim.R. 40, defendant filed a motion to dismiss on the grounds that the warden's summons delivered to her on July 17 did not conform to the requirements of D.C.Crim.R. 4 and that the warden was not authorized to serve that summons upon her. The Superior Court rejected that argument. Now, on appeal, defendant urges the Law Court to hold that the Superior Court erred in denying her motion.

In resisting defendant's appeal, the State contends that she waived her right to challenge the warden's summons by failing to comply with the last sentence of D.C.Crim.R. 40, which at the pertinent time read as follows:

Failure of a defendant prior to transfer pursuant to this rule to present any defense or objection which must be raised under Rule 12 will constitute a waiver thereof. ¹

Suffice it to say that defendant did present her objection to the warden's summons in timely fashion, in that she filed the same motion to dismiss in the District Court prior to transfer. It is true that the District Court never heard or ruled on her motion to dismiss, but that failure of the District Court to act before transfer of the case is not shown to have been caused by any act or omission on defendant's part. She had "presented" her objection prior to transfer in a manner adequate to prevent any waiver.

Addressing, as we must, the merits of defendant's argument that the warden's summons and his service of it were insufficient, we agree with the Superior Court's denial of her motion to dismiss. Rule 4(a) contemplates the issuance of a warrant or summons only after the filing of a complaint or of "an affidavit ... sworn to before a magistrate or other officer empowered to issue process." Rule 4(b) requires a warrant or summons to issue from a court and to be signed by the magistrate or other issuing officer. Those requirements were not met in the case of the warden's summons delivered to defendant at Sebago Lake on July 17, 1981. The complaint was not filed until seven days later, and a game warden is empowered only to "serve" criminal processes, not to issue them. 12 M.R.S.A. § 7053(2)(B) (1981).

Nonetheless, defendant was not prejudiced by what the warden did at Sebago Lake on July 17. On appeal, defendant concedes that the game warden could have arrested her then and there. 12 M.R.S.A. § 7053(2)(A) & (D) (1981). Instead, he chose to treat her with considerably more courtesy. If, as she argues, the document the warden gave her was not a valid summons, then its only effect was to request or invite her presence in court on July 24. A valid summons, of course, would be a command, rather than a request, to appear in court, and disregard of that command would be grounds for the issuance of an arrest warrant. See D.C.Crim.R. 4(a). While the alleged defects in the summons and service might have excused defendant if she had failed to comply with the warden's request, it is undisputed in this case that a valid complaint was later filed in the District Court and that subsequently defendant appeared personally in that court for arraignment and trial. The validity of her prosecution and conviction upon the complaint after she personally appeared is not vitiated by any insufficiency in the warden's summons and its service on July 17. See generally Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511-12, 96 L.Ed. 541 (1952); State v. Stone, Me., 294 A.2d 683, 693-97, cert. denied, 409 U.S. 908, 93 S.Ct. 212, 34 L.Ed.2d 169 (1972).

The second issue argued by defendant on appeal was raised for the first time in this court. She asserts that the District Court never acquired jurisdiction to try her on the complaint because the filing of the complaint was never properly noted on the District Court docket sheet, as required by D.C.Crim.R. 55(a). The State, in addition to disputing defendant's conclusion that the docketing defect deprived the District Court (and thereafter the Superior Court and this court) of jurisdiction, has moved in the alternative to supplement the record on appeal so as to correct the omission. In view of our conclusion that the docketing error was not a jurisdictional defect, we...