Duly v. Heflin

873 S.W.2d 932, 1994 Mo. App. LEXIS 646, 1994 WL 133509

• Court: Missouri Court of Appeals
• Decided: April 19, 1994
• Docket: No. WD 48796
• Status: Published

Opinions

FENNER, Judge.

This is an original proceeding in habeas corpus. Petitioner, David Duly, filed his Petition for Writ of Habeas Corpus with this court on December 17, 1993. Duly is presently in the custody of the Municipal Correction Institute (MCI), following revocation of his parole pursuant to an order of the Circuit Court of Jackson County, Missouri. He alleges that his imprisonment is unlawful because the circuit court lacked jurisdiction to revoke his parole and return him to the correctional facility after he was granted an early release by administrative officials at MCI.

On January 20, 1992, Duly was arrested in Kansas City and charged with violating municipal ordinance § 34.116(a), driving while under the influence of intoxicating liquor. Duly was found guilty in municipal court and appealed his conviction to the circuit court. On September 24, 1992, Duly pled guilty to the DWI charge and was fined $250, sentenced to 180 days with the execution suspended and placed on probation for two years. As a condition of his probation, Duly was ordered to attend a counseling program. Because he subsequently failed to attend the counseling program, the court revoked Duty’s probation and ordered him to serve 180 days at MCI.

On November 13, 1993, Duty was unconditionally paroled by the acting director, Bob Mohart, and the acting superintendent of MCI, Ted Heflin, after having served 53 days of the sentence. On November 19, 1993, the sentencing court issued “show cause” orders and a hearing was subsequently held to determine the lawfulness and propriety of Duty’s early release from MCI. Following the show cause hearing, the court issued an order finding that Duty’s release was improper and unlawful. On December 14, 1993, after a show cause hearing for commitment, the court set aside the order of early release and ordered Duly to return to MCI to serve the previously imposed sentence of 180 days, less the 53 days already served. Duly was returned to MCI where he is currently incarcerated. On December 17, 1993, he filed his Petition for Writ of Habeas Corpus claiming he was unlawfully imprisoned because the circuit court did not have the jurisdiction to set aside a parole order granted by MCI officials.

The petitioner argues that his release by the MCI officials was valid and the court erred in voiding the early release and subsequently ordering him confined to serve the remainder of his sentence. Respondent¹ maintains that the circuit court was authorized to revoke Duly’s parole pursuant to section 559.100, RSMo Supp.1993.²

Section 479.200, RSMo 1986, gives the circuit court jurisdiction over municipal court appeals. Furthermore, the courts have inherent power to enforce their own judgments and should see to it that such judgments are enforced when called upon to do so. Lake Thunderbird Property Owners Ass’n, Inc. v. Lake Thunderbird, Inc., 680 S.W.2d 761, 763 (Mo.App.1984). The rule, with reference to loss of jurisdiction after entry of judgment, merely bars the court’s right to alter or change its judgment, but does not preclude enforcement of the judgment as entered. Id. Although Lake Thunderbird is a civil case, we see no distinction in the jurisdictional authority of the court to enforce its judgment in a criminal case as opposed to a civil case.³

In regard to parole, section 559.100 grants authority to the circuit courts to parole persons convicted of offenses over which they have jurisdiction.⁴ Section 217.650(4) defines parole as “the release of an offender to the community by the court or the state board of probation and parole prior to the expiration of his term, subject to conditions imposed by the court or the board and to its supervision;

Pursuant to sections 559.100 and 217.-650, the general rule is that the circuit court has jurisdiction to grant parole to a defendant already confined under a sentence by the court for an offense over which the court has jurisdiction. Therefore, pursuant to the general statutory scheme, the circuit court retains jurisdiction for purpose of parole.⁵

However, when a person is sentenced to the custody of the department of corrections, the state board of probation and parole is solely empowered to determine parole. § 217.655. The only exception to the authority of the state board of probation and parole is provided under section 559.115, which grants the circuit court authority to grant probation to a defendant any time up to 120 days after he has been delivered to the custody of the department of corrections.

In accordance with the statutory scheme, the circuit court loses jurisdiction over parole of a defendant, sentenced to the department of corrections, after 120 days. However, the circuit court retains jurisdiction over parole of a defendant sentenced to a county or city jail.⁶

Nonetheless, petitioner argues that his release from MCI was authorized by the Administrative Code, Code of General Ordinances, Kansas City, Missouri. However, we are not able to reach this argument because the ordinances upon which petitioner relies are not a part of the record before us.

Courts may not take judicial notice of city ordinances. Drury Displays, Inc. v. Board of Adjustment, 832 S.W.2d 330, 331 (Mo.App.1992). Petitioner has not referenced the record to show that the ordinances to which he cites in his argument were properly before the trial court and there is no stipulation between the parties as to the content of any applicable ordinance.

Petitioner has attached to his brief a photocopy of one of the ordinances. However, the authenticity of said ordinance is not certified or stipulated and there is no reference to the record from which the ordinance is taken. An ordinance attached as an appendix to a brief cannot be considered by an appellate court. State ex ret. Freeze v. City of Cape Girardeau, 523 S.W.2d 123, 127 (Mo.App.1975).

The dissent takes the position that because § 23.11 of the city ordinances is referenced in the briefs of the parties and was alleged in the pleading to be controlling, the ordinance was properly before the trial court and, therefore, properly before this court on appeal. We disagree. The briefs either only refer to certain ordinances generally or recite the text of a given ordinance differently. This does not establish any stipulation to a given ordinance implied or otherwise. The fact that the briefs reference an ordinance generally does not inform us of the language and content of the ordinance. The dissent assumes that the copy of the ordinance attached to the petitioner’s brief is the duly enacted ordinance, § 23.11. We simply cannot make such an assumption.

The dissent cites City of Kansas City v. Narron, 493 S.W.2d 394, 401 (Mo.App.1973), in support of its position that this court can consider the copy of § 23.11 of the Kansas City Code of Ordinances, as attached to petitioner’s brief, apparently as an exhibit to this appellate court, as a duly enacted ordinance that is properly before us. We do not find Narron applicable. In Narron, the record reflected that the ordinances in question were offered and received in evidence without objection. Id. Our record does not reflect that the ordinance in question, § 23.11, or other ordinances that the parties argue as relevant herein, were ever offered or received in evidence. Furthermore, in Narron, there was no conflict on appeal as to the terms of the ordinance in question as there is in the case at bar. Id.

Additionally, the dissent assumes that the copy of § 23.11, attached to the amicus brief is a summary of the ordinance. We do not know that to be the case. The fact is the language of § 23.11, as offered by the parties in their briefs on appeal, is in conflict.⁷ It is not the fault of this court that we have not been presented with a proper record for review and we are not allowed to make assumptions on facts that are not before us.

The parties have not favored us with an official transcript and there is no record properly before us to show that ordinances were offered or received in evidence. As stated previously, the parties even disagree in their briefs as to the content of ordinances they argue to be relevant. We are simply not able to consider the city ordinances in this cause. Since it is petitioner’s burden to support his position under the record, his argument that his release was authorized by City Code fails. See York v. Missouri Pacific R.R. Co., 813 S.W.2d 61, 62 (Mo.App.1991).

The record herein reflects that petitioner was sentenced to city jail, that the trial court had continuing jurisdiction over parole of petitioner, and inherent authority to enforce its judgment under the record presented herein. The trial court was within its authority in revoking petitioner’s parole. The record does not establish that the City, by proper exercise of authority, established a parole system that divested the circuit court of jurisdiction or authority. As previously discussed, the ordinances upon which petitioner relies are not before us.

Petitioner’s Petition for Writ of Habeas Corpus is denied.

BRECKENRIDGE, J., concurs.

HANNA, P.J., files dissenting opinion.

1 . In addition to the respondent, the sentencing judge was given permission to file an amicus brief.

2 . All statutory references are to RSMo Supp. 1993, unless otherwise specifically stated.

3 . In State v. Miller, 169 Kan. 1, 217 P.2d 287, 293 (1950), the Supreme Court of Kansas recognized the inherent power of the court to enforce a judgment of execution in a criminal cause. We believe the jurisdictional authority of the Missouri courts to be the same.

4 . Section 559.100 provides, in pertinent part, as follows:

1. The circuit courts of this state shall have power, herein provided, to place on probation or to parole persons convicted of any offense over which they have jurisdiction, except as otherwise provided in sections 195.275 to 195.-296, RSMo, section 558.018, RSMo, section 565.020, RSMo, section 571.015, RSMo, and section 559.115.

The dissent interprets section 559.100 as being applicable to misdemeanors and felonies, but not municipal ordinances. However, the plain language of the ordinance states otherwise by authorizing the circuit courts to parole for an offense "over which they have jurisdiction." In support of its position in this regard, the dissent cites City of Ferguson v. Nelson, 438 S.W.2d 249, 254 (Mo.1969).

In Ferguson, the court held that section 546.-830 (since repealed) did not apply to city ordinance violations. As noted by the court, section 546.830 (since repealed) provided as follows:

Imprisonment for misdemeanor. Whenever any defendant shall, on a conviction, be sentenced to imprisonment in a county jail, or to pay a fine, he shall be imprisoned until the sentence is fully complied with and all costs paid, unless he be sooner discharged in the manner provided in section 546.850.

Id.

The court in Ferguson went on to note that: “[t]he section obviously refers only to state prosecutions, either for misdemeanors or mixed felonies. It refers to'a county jail’; it is interspersed between sections which clearly concern only state prosecutions; and there is nothing in the wording of the statute which indicates that it should have any broader application.” Id.

Contrary to the case at bar, the language of section 546.830 (since repealed) specifically excluded its application to municipal ordinance violations. Ferguson has no application herein.

5 .The dissent cites State v. Hicks, 376 S.W.2d 160, 163 (Mo.1964), for the proposition that judicial paroles under our statutory scheme are limited to situations involving a circuit court’s commitment to a county jail. However, Hicks was decided under the laws in effect in 1962 which are no longer operative. As noted in Hicks, section 549.201, RSMo 1959, at that time, defined parole as the release of a prisoner by the state board of probation and parole prior to the expiration of the prisoner’s term. Id. However, under section 217.650(4), RSMo Supp.1993, as currently in effect, parole is defined as “the release of an offender to the community by the court or the state board of probation and parole prior to the expiration of his term, subject to conditions imposed by the court or the board and to its supervision; _” (emphasis added). The cotut in Hicks went on to state in dicta that ”[i]n certain instances the statutes refer to judicial paroles, but these provisions are evidently included in order to permit the parole of persons convicted of misdemeanors or sentenced to jail on graded felonies.” Hicks, 376 S.W.2d at 163. Whatever value the dissent places upon this language in Hicks, it is nonetheless based upon statutory language which has since been changed in a fashion which negates the reliance of the dissent on Hicks.

Under the statutory language in effect at the time of Hicks, only the state board of probation and parole had authority to grant parole. However, under section 217.650(4), as currently in effect, both the court and the state board have authority to grant parole.

6 . This is not to say that a city or county is precluded from adopting provisions for parole of prisoners committed to its custody. However, as discussed herein, the record does not establish any such provision that might have been adopted by the city. The dissent argues that the circuit court is without authority to act in a capacity to review and reverse the decisions of a duly constituted paroling authority citing Smith v. Missouri State Board of Probation & Parole, 743 S.W.2d 123 (Mo.App.1988), This is not a question that we address, but we do not necessarily take exception to the position of the dissent in this regard. We are merely saying that the record does not establish that petitioner was in fact paroled under the guidelines and authority of a duly constituted paroling authority.

The parties reference the applicability of ordinances other than § 23.11 in their briefs. Some other ordinances in Chapter 23 of the Kansas City Code of Ordinances arguably have relevance to the issue presented. However, as discussed herein, none of these ordinances are before us. Ideally, we would have been provided with a certified copy of the entire Chapter 23 so that the issue could be fully addressed and the ordinances considered in proper context.

7 . The text of § 23.11 as represented by Petitioner, gives the director of urban community services broad discretion for determining early release of prisoners while the version as offered by the amicus brief grants no discretionary authority to the director. We cannot assume one version to be correct and the other incorrect without becoming an advocate for the position of one party over the other.