State ex rel. Dunn v. Dalton

793 S.W.2d 157, 1990 Mo. App. LEXIS 976, 1990 WL 89527
CourtMissouri Court of Appeals
DecidedJune 26, 1990
DocketNo. 58110
StatusPublished
Cited by1 cases

This text of 793 S.W.2d 157 (State ex rel. Dunn v. Dalton) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Dunn v. Dalton, 793 S.W.2d 157, 1990 Mo. App. LEXIS 976, 1990 WL 89527 (Mo. Ct. App. 1990).

Opinion

JOSEPH J. SIMEONE, Senior Judge.

This case is an original proceeding in mandamus to compel the Honorable David A. Dalton, Presiding Judge of the 11th Judicial Circuit to reassign the Honorable Lester W. Duggan, Jr., the judge who originally took pleas of guilty from relator, as the judge to preside over relator’s probation revocation proceedings. We have jurisdiction. Mo. Const. Art. V., § 4. We issued our preliminary order on March 16, 1990. We now make our preliminary order permanent.

On March 2,1987, relator, Earnest Dunn, pleaded guilty before the Honorable Lester W. Duggan, Jr. to two counts of burglary, second degree and three counts of stealing over $150.00. Sections 569.170, 570.030.-3(1), RSMo, 1986. The guilty pleas were made on the State’s recommendation, but the State took no position on either probation or parole. Early in the proceedings, and after charges were filed, the State filed a motion to disqualify Judge Duggan in each of the criminal cases, and he, in fact, did disqualify himself in one of the charges. But no order of disqualification appears in the record on the other four charges. Later in the proceedings, the State, on March 2,1987, waived its disqualification of Judge Duggan. Pleas were taken on March 2,1987. At the sentencing on May 4, 1987, Judge Duggan offered relator a two year prison sentence, or a suspended imposition of sentence with five year concurrent terms of probation. Relator chose the latter. Judge Duggan imposed concurrent suspended imposition of sentences and granted relator five years probation. At no time during the plea proceedings or the sentencing did the State move to disqualify Judge Duggan after waiving its initial motion for disqualification.

On March 22,1989, motions were filed in each of the cases, to revoke probation. Respondent, Judge Dalton, as presiding judge of the circuit, first assigned the probation revocation proceedings to the Honorable Fred Rush, and then assigned the probation revocation proceedings to the Respondent, the Honorable Kathie B. Dudley, Associate Judge. The State, apparently, routinely disqualifies Judge Duggan from hearing any criminal cases. Apparently all of the other judges in the circuit have been disqualified to preside over relator’s cases except Judge Duggan.

[159]*159On March 15, 1990, relator filed his petition for mandamus and prohibition praying that the Respondent, Judge Dudley, be prohibited from presiding over the probation revocation proceedings and praying that the Respondent, Judge Dalton, be compelled to assign the probation revocation proceedings to Judge Duggan.

In his brief, relator contends that he is entitled to have Judge Duggan, the judge who originally accepted his pleas, and who imposed the sentences, preside over the probation revocation proceedings and to impose sentence, if any. Relator relies on State ex rel. O’Brien v. Murphy, 592 S.W.2d 194 (Mo.App.1979).

Respondent, Judge Dalton, contends that, as presiding judge, he has authority, pursuant to § 478.240, RSMo to make assignments of judicial personnel to cases which in his best judgment would be beneficial to the control of the docket and the administration of justice, and further contends that Judge Duggan is currently assigned to the civil division and is otherwise incapacitated from presiding over the cases involving relator.

In State ex rel. O’Brien v. Murphy, supra, relator sought to bar the respondent, Judge, from presiding at a probation revocation hearing following a denial of rela-° tor’s motion for disqualification. Relator had pleaded guilty to charges of burglary and stealing, imposition of sentence was suspended and relator was placed on probation. A probation revocation hearing was held but later set aside because of improper notice. A second hearing was scheduled; relator filed a motion for disqualification on the ground that the judge had prejudged the issues. Relator sought prohibition in this court. The preliminary writ was quashed. This court treated the motion for disqualification as both peremptory in nature and for cause. Despite relator’s contention that probation revocation proceeding is a separate, independent civil proceeding, so that he is entitled to an automatic disqualification pursuant to Rules 30.12 [now Rule 32.07] or 51.05, upon a “timely” notice, this court held that the probation revocation proceeding is not a “separate, independent proceeding,” and that the “plea bargain proceedings” constitute the “trial” within the meaning of the rule. The probation revocation hearing is a mere continuation of the plea proceedings. This court found substantial support for our holding in the decisions of other jurisdictions, and in the ABA Standards Relating to the Administration of Justice. This court concluded that:

Because revocation proceedings are an extension of the original plea bargain or trial, it is manifest that the court granting probation retains continuing jurisdiction over the probationer throughout the entire period of his probation.

Murphy, supra, 592 S.W.2d at 196.

The rationale for our conclusion was that “probation is a matter over which the sentencing judge takes a personal hand. His decision is one made upon the basis of his own judgment of the defendant’s potential ... No one is in a better position than the sentencing judge to accomplish the objects of probation and keep track of its progress.” Murphy, supra, 592 S.W.2d at 197, quoting from Smith v. State, 598 P.2d 1389, 1391 (Wyo.1979). Based on this rationale, and the principle that the probation revocation proceeding is a continuation of the plea proceedings and not a separate or independent one, we quashed the preliminary writ, and held that the sentencing judge was the proper official to preside at the probation revocation proceedings.

In State ex rel. Horton v. House, 646 S.W.2d 91 (Mo. banc 1983), relator appeared before Judge Crouch in Wright County and pleaded guilty to a charge of burglary. Relator was placed on probation. Wright County, by legislation, became a part of another circuit and after becoming so, the prosecutor moved to revoke probation, before the Honorable Robert House, the judge in the new circuit. Relator moved to disqualify Judge House who declined. A writ was sought in the Supreme Court, because the controversy developed as to which judge had jurisdiction to hear the probation revocation proceeding. Our Supreme court held that relator’s motion to disqualify Judge House [160]*160was timely filed since it was filed two days after the Judge designated himself as the judge to hear the revocation proceeding. The Supreme Court made the preliminary writ of prohibition absolute holding that the respondent judge, who did not originally take the guilty plea and impose sentence was legally obligated to grant the change of judge because he had no jurisdiction to proceed with the probation revocation proceeding, other than to take “appropriate steps” to disqualify himself. See also State v. Hollensbe, 720 S.W.2d 14, 17 (Mo.App.1986); and Tittsworth v. Chaffin, 741 S.W.2d 314, 316 (Mo.App.1987).

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Bluebook (online)
793 S.W.2d 157, 1990 Mo. App. LEXIS 976, 1990 WL 89527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-dunn-v-dalton-moctapp-1990.