State Ex Rel. Garrett v. Gagne

531 S.W.2d 264, 1975 Mo. LEXIS 396

• Court: Supreme Court of Missouri
• Decided: November 25, 1975
• Docket: 58853
• Status: Published

Opinions

MORGAN, Judge.

In his petition for a writ of habeas corpus, petitioner alleged that he was being unlawfully restrained of his liberty pursuant to an order of execution and commitment under a judgment of the Municipal Court of Kansas City. The petition was sustained and the writ ordered to issue; the return of respondent was filed; and, after the court determined that “issues of fact” did exist, a Master was appointed to take testimony thereon and report his “findings of fact.” Such findings are of record and the cause has been argued before this court.

The factual background may be summarized, fairly, as follows: petitioner was arrested on February 14, 1974, pursuant to a complaint that he had committed an offense (a sexually related assault) in violation of the City’s General Ordinances; that on April 29,1974, petitioner, without benefit of counsel, entered a plea of not guilty; that, thereafter, a trial was had and the petitioner was found guilty with punishment assessed at confinement for 180 days in a Municipal Correctional Institution; that petitioner posted a cash bond in the amount of $360. and appeal to the Circuit Court of Jackson County for appearance therein on May 31, 1974; that on said date a City Counselor appeared and announced ready for trial but petitioner failed to appear, whereupon, the Circuit Court entered its order and judgment that petitioner’s “appeal is dismissed and the cause is remanded to the Municipal Court for execution.” Some four months later, on September 25, 1974, the Clerk of the Municipal Court wrote petitioner a letter directing that he appear by October 10, 1974, to satisfy the judgment of the Municipal Court. Petitioner complied and the present proceeding was initiated.

Petitioner contends that his detention is illegal for two reasons, asserted in the alternative, to-wit: (1) dismissal of petitioner’s appeal by the circuit court was in violation of § 98.020, RSMo 1969, and Supreme Court Rules 37.84, 22.16, 29.02 and 27.08; and, (2) if the judgment (remand) of the circuit court was proper and not erroneous, the judgment of conviction of the Municipal Court is invalid because “he was tried therein without counsel and without having knowingly and intelligently waived his right thereto in violation of that guarantee of the Sixth and Fourteenth Amendments to the United States Constitution.”

The first point can be resolved by answering one question — does a circuit court, under the existing law, have the discretionary power to dismiss an appeal from a judgment of a Municipal Court and remand the cause for execution of the judgment entered by the latter when the appellant fails to appear in circuit court for de novo relitigation of the original charge?

Those courts which have been called on to consider the question have failed to reach a uniform answer. The divergent results are detailed in 22 C.J.S. Criminal Law § 399, wherein (with footnote references deleted), it is stated, in part:

The appeal, if properly taken and continued in effect, vacates the judgment of the inferior court; as a general rule, a commitment under the inferior court judgment is wrongful and erroneous. Under some statutes, however, the judgment of the inferior court, pending the appeal, remains in full force and effect until it is displaced by the judgment of the court to which the appeal is taken; and if accused does not suspend the execution of the judgment of the inferior court by the execution of a supersedeas bond he must perform it pending his appeal, even though on the appeal his case is tried de novo; and, since the requirement of a peace bond is a preventive remedy, not a part of the punishment, one who was convicted in the inferior court and, in addition to the judgment entered on the verdict, was ordered to execute a bond to keep the peace and in default thereof to be confined in jail for a stated time, should, if the bond is not given, be held in custody for the required time, even though he has appealed the case.

The appeal does not wipe out or annul the judgment of the inferior court so as to render it nonexistent if the appeal is not perfected or is revoked. So, where appellant withdraws his appeal, or the appellate court dismisses it, and sends it back to the justice’s court with a writ of proce-dendo, there is no affirmance or new sentence; the judgment of the justice’s court is left in full force and effect, and under such circumstances, the judgment of the justice’s court should be executed, and commitment in pursuance thereof is valid, even though the dismissal was erroneous.

The opposing views noted in that portion of the text just quoted, and in the cases from the several states cited therein, obviously turn on the effect the filing of an appeal from a municipal court judgment has thereon, i. e., is the same entirely vacated or is it merely stayed? Posed otherwise — is or is not the efficacy of a municipal court judgment entirely destroyed by an appeal therefrom? The answer to the latter, and basic question, has not depended upon any philosophical approach to the problem but upon those statutory provisions and court rules in effect at the time the question was presented. For that reason, nothing would be gained by a detailed review of prior cases within or without this state,¹ and we seek to resolve the validity of petitioner’s confinement under the present law of Missouri.

Section 396.5 of the Kansas City Charter provides: “Appeals may be taken from the municipal court ... to the circuit court in the manner and upon the conditions prescribed by law and rules of the Missouri Supreme Court.”

Section 98.020, RSMo 1969, which is a general statute designed apparently to apply to all municipalities, provides: “Appeals from police courts and for violation of an ordinance of a city, town or village shall be in the nature of a criminal appeal from a magistrate.” This section would indicate that those statutory provisions and court rules applicable to criminal appeals from a magistrate would apply, i. e., Chapter 543, RSMo 1969, and Supreme Court Rule 22.² However, resort to such general provisions is not necessary in view of Supreme Court Rule 37, which is specifically designed to control proceedings in a municipal court and the effect of an appeal from a judgment therein.

Rule 37.81 provides: “Execution of the judgment rendered in a municipal court shall be stayed if an appeal is taken and if the defendant is admitted to bail pending the appeal.” (Emphasis added.)

Rule 37.82 provides: “If the defendant is not so admitted to bail pending appeal, he shall remain in custody or be committed to abide the determination of the case in the circuit or other court having jurisdiction of the appeal.” (Emphasis added.)

Thus, in Missouri the answer to the basic question is not difficult to resolve. A mere reading of Rules 37.81 and 37.82 makes it clear that the filing of an appeal alone does not vacate or annul the judgment of the municipal court but merely suspends or stays the efficacy of the same pending a final disposition of the appeal in circuit court. The judgment entered remains in effect until it is displaced by a judgment in the circuit court. Such is evident as shown by Rule 37.82, which calls for continued confinement, absent a bond, under the original judgment.

Petitioner, in arguing otherwise, relies on quotes extracted from two recent decisions of this court. The first is Kansas City v. Henderson, 468 S.W.2d 48 (Mo.1971), in which it was said, 1. c. 51, that the “appeal had the effect of setting aside and nullifying the conviction imposed in the municipal court.” The second is State v. Fields, 487 (Mo.1972), wherein the declaration just noted was quoted, 1. c. 562, with approval. Out of context, the same would tend to sustain petitioner’s position. However, in each case there had been, in fact, a trial at the circuit court level and the reference to an “appeal” in each encompassed the entire proceeding had therein. This writer, as the author of the latter case, is free to suggest that perhaps there are times when it would be better to be redundant and repeat the factual setting wherein each statement in an opinion is made. Not having done so, we can only point out that the question herein considered was not present in either the Henderson or Fields cases, i. e., the effect of the mere filing of a formal appeal. See Kansas City v. Bott, 509 S.W.2d 42 (Mo. banc 1974).

The ultimate question remains. What happens if the appellant fails to appear in circuit court?

One possibility is found in Rule 37.98, which provides, in part, that: “The court . may . . . direct the arrest of a defendant who is at large on bail for commitment ... (1) When there has been a breach of the condition of the bond .” The authority thus authorized, was not exercised and we consider if the remand and dismissal ordered in this case was a viable alternative.

The petitioner was found guilty in the municipal court. Under the existing law, he had available to him another opportunity to establish his innocence, or more accurately, to require the prosecuting authorities to establish his guilt a second time. Such a “two-tiered” approach allowing for de novo relitigation of the charge is solely for the benefit and protection of the accused. In circuit court he maintains his status of innocence until the prosecution shows otherwise; and no burden of “going forward” is placed upon him. Hoelzel v. Kelly, 222 Mo.App. 566, 291 S.W. 1081 (1927). However, by appealing to the circuit court, even in the absence of the obligations created by the bond given, the petitioner did make it incumbent upon himself to appear and make himself available as a defendant at such time as directed. This he failed to do. In the normal procedures involving prosecutions for offenses against society, the law customarily does not force an appeal upon an accused. (Unless specifically called for in certain cases, such as where a death penalty has been imposed.) Absent some reason making it impossible to appear, an accused by his absence evidences his disdain for the law and its legal processes.³ Thereafter, a complaint that the circuit court did not force upon him any potential benefit to be derived from a de novo proceeding rings hollow. Under statutes and rules not necessarily the same as they now exist, this court in 1856 approved a comparable result in City of St. Louis v. Murphy, 24 Mo. 41. Petitioner obstructed the orderly process of the court to provide a review to which he was entitled but which he made no effort to preserve. We believe the circuit court had the discretionary alternative of dismissing the appeal. Nor are we persuaded by the argument that a trial in circuit court must, of necessity, follow the filing of an appeal. Rule 37.84 contemplates the cooperation of an appellant and provides that in circuit court the “case shall be heard, tried and determined de novo.” The word “shall” therein does not make the same compulsory but only dictates that the review, if there is to be one, shall be de novo. To construe the rule otherwise would negate Rules 37.81 and 37.82 which provide that the municipal court judgment is stayed only. Point one is ruled against petitioner.

For his second point, petitioner challenges the legality of his confinement by asserting that he was convicted in the municipal court without assistance of counsel when he had not knowingly and intelligently waived his right thereto. Reliance is placed on the dictates of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). In the latter case, the court declared, 1. c. 37, 92 S.Ct. 2012, “that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”

To resolve the issue, this court appointed one of the most experienced trial judges in the state as Master to hold a hearing and report his findings of fact. Compare State ex rel. Kansas City v. Meyers, 513 S.W.2d 414 (Mo. banc 1974). With the unquestioned absence of counsel, the prosecuting authority had “the burden of coming forward with evidence of waiver,” Morris v. State, 456 S.W.2d 289, 293 (Mo.1970); and, we quote that portion of the “findings” relative to that issue, to-wit:

That before the hearing Judge Spottsville read the charge to petitioner and ascertained, by the admission of the petitioner, that he understood the charge. Judge Spottsville further advised him that he was entitled to be represented by an attorney of his own choosing or if he was unable to afford an attorney the Court would consider appointing a legal aid lawyer for him. Judge Spottsville further told him that the charge appeared serious and that the Court was authorized to impose a fine as high as $500, a sentence to the Municipal Correctional Institution of six months, or both.

That on April 29, 1974, petitioner was a person, aged 26, with a high school education and with no impairment of his intellectual capacity.

That no claim of indigency or evidence of indigency was presented either at the Municipal Court hearing on the charge against petitioner or at the Master’s Hearing on the instant Writ of Habeas Corpus.

That petitioner elected to go to trial in Municipal Court on the subject charge without a lawyer and at the time when he made this election he was aware of the charge against him, of the possible penalty involved, of the fact that he was entitled to be represented by counsel of his choice and of the fact that persons who could not afford counsel were entitled to have one appointed by the Court.

That petitioner was properly advised of his right to counsel before his trial in Municipal Court and knowingly waived it.

That upon trial of the charge petitioner was found guilty and sentenced to 180 days at the Municipal Farm.

That the petitioner was advised of his right to appeal to the Circuit Court, posted a $360 cash bond and filed an appeal.

The record as made sustains the finding of the Master that there was a knowing and intelligent waiver of counsel. Our review of the same reflects that petitioner was twenty-seven years of age, a graduate of a high school and a barber college; that he was employed as a barber or “hair dresser” and had been for six years; that he was not indigent and made no claim that he was; that he fully understood the proceedings and particularly his right to the assistance of counsel. All doubts were removed by petitioner’s own explanation as to why he did not have counsel. While being interrogated before the Master, by his own counsel in this proceeding relative to the precise issue, he testified: “I didn’t do it so I didn’t expect anything really.” Further explanation for waiver was the fact the complaining witness against him had filed previous complaints, and “She just dropped the charges every time.” Point two is ruled against petitioner.

The writ of habeas corpus heretofore issued, is quashed; and petitioner is remanded to the custody of respondent.

HOLMAN, HENLEY, FINCH and DONNELLY, JJ., concur. BARDGETT, J., dissents in separate dissenting opinion filed. SEILER, C. J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

1 . Representative cases are: Morris v. Commonwealth, 222 Ky. 400, 300 S.W. 887 (1927) and Thompson v. City of Birmingham, 217 Ala. 491, 117 So. 406 (1928). See 21A Mo.Dig., Municipal Corp., 642(1), 642(2) and Costarelli v. Massachusetts, 421 U.S. 193, 95 S.Ct. 1534, 44 L.Ed.2d 76, 1975.

2 . Such general provisions, insofar as of interest here, are consistent with Rule 37. For instance, § 543.290 provides that an “appeal shall operate as a stay of execution” and Rule 22.12 dictates that there “shall be a stay of execution” after an appeal.

3 . Petitioner failed to appear for trial on Feb. 21, 1974, in the municipal court as scheduled; his bond was forfeited but later reinstated. Furthermore, for a period of 117 days after the dismissal in circuit court petitioner did nothing to protect or prosecute his appeal.