State ex rel. McCulloch v. Schiff

852 S.W.2d 392, 1993 Mo. App. LEXIS 592, 1993 WL 128186
CourtMissouri Court of Appeals
DecidedApril 27, 1993
DocketNo. 63517
StatusPublished
Cited by7 cases

This text of 852 S.W.2d 392 (State ex rel. McCulloch v. Schiff) 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. McCulloch v. Schiff, 852 S.W.2d 392, 1993 Mo. App. LEXIS 592, 1993 WL 128186 (Mo. Ct. App. 1993).

Opinion

CRANDALL, Presiding Judge.

Relator, Robert P. McCulloch, the duly elected prosecuting attorney of St. Louis County, seeks a writ of prohibition against Respondent, The Honorable Martin Schiff, Jr., in the underlying criminal case of State v. Schuler. At issue is whether Respondent has jurisdiction to place defendant, Paul J. Schuler, on probation after a conviction for armed criminal action. § 571.-015.1, RSMo (1986). On March 3, 1993, we issued our preliminary order in prohibition. We now make the preliminary order in prohibition absolute.

The facts presented to this court are undisputed. Defendant was charged by information with Count I, Assault in the Second Degree, § 565.060, RSMo (1986), and with Count II, Armed Criminal Action, § 571.015.1. After a jury waived trial, defendant was found guilty on both counts. Respondent denied defendant’s motion for new trial on the assault conviction, but sustained the motion on the armed criminal action conviction. Respondent sentenced defendant to imprisonment for five years on the assault conviction. Thereafter, Respondent released defendant on probation on the assault conviction pursuant to § 559.115, RSMo (Cum.Supp.1992). Respondent suspended execution of sentence and placed defendant on probation for five years.

The State appealed the trial court’s grant of the motion for new trial on the armed criminal action charge; defendant appealed from the judgment of conviction and sentence on the assault charge. The judgment of conviction on the assault count was affirmed. The order granting a new trial on the armed criminal action conviction was reversed and the cause was remanded for sentencing. State v. Schuler, 838 S.W.2d 19 (Mo.App.1992).

On February 19, 1993, defendant appeared for sentencing on the armed criminal action conviction pursuant to the mandate of this court. At that time, Respondent announced his intention to sentence defendant to imprisonment for three years to run concurrent with the sentence on the assault conviction, and to suspend execution of the sentence and, pursuant to § 559.115, place defendant on probation on the armed criminal action conviction, giving defendant credit for time served on the assault conviction.

Relator objected to the proposed sentencing by Respondent and was granted time to [394]*394file an application for writ of prohibition to this court. On Relator’s application, this court issued its preliminary order in prohibition.

Initially, we address the procedural questions raised by Respondent. Respondent contends that prohibition does not lie because of the executory nature of his order and because, even if the order were executed, the State would have the right to appeal.

We first consider Respondent’s argument that there is nothing for this court to review because Respondent never acted, but merely expressed his intent to place defendant on probation. Prohibition is an independent proceeding to prevent judicial proceedings that lack jurisdiction. State ex rel. Raack v. Kohn, 720 S.W.2d 941, 943 (Mo. banc 1986). A basic purpose of prohibition is to confine an inferior court to its proper jurisdiction. State ex rel. Amato v. Clifford, 689 S.W.2d 78, 81 (Mo.App.1985). Because it is preventive in nature, the writ will issue to restrain the commission of a future act. Id.

Respondent cites to State ex rel. Westfall v. Gerhard, 642 S.W.2d 679 (Mo.App.1982) for the proposition that prohibition does not lie to correct anticipated judicial errors. In Westfall, defendant was charged with stealing over $150.00 by deceit. He filed a motion in limine requesting the court to exclude evidence of telephone conversations between the victim and an unidentified caller. The court entered an order stating its intent to sustain defendant’s motion. This court held that a writ of prohibition was inappropriate because the court’s ruling on the motion in limine was interlocutory and the trial court should have the opportunity to determine the admissibility of the evidence at trial.

Westfall is inapposite. In Westfall, the trial judge was acting within his jurisdiction in ruling on the admissibility of evidence. The fact that the ruling might have an adverse effect on the prosecutor’s case was not material. Certainly, most evi-dentiary rulings adversely affect some party to the litigation. It is not the function of an appellate court to issue advisory opinions on proposed evidentiary rulings. Westfall, 642 S.W.2d at 681.

In the instant case, the record is clear that Respondent intends to sentence defendant in accordance with his proposed order. At issue is whether he has jurisdiction to proceed in the manner suggested by him. Prevention of an act in excess of a trial court’s jurisdiction is a proper function of prohibition. State ex rel. Dally v. Elliston, 811 S.W.2d 371, 373 (Mo. banc 1991). Under the circumstances, a writ of prohibition is the appropriate remedy for Relator to seek.

Respondent next contends that prohibition will not lie because the State has the right to appeal under § 547.200.2, RSMo (1986) from the sentence which Respondent might impose.1

Prohibition will not lie wherein adequate relief can be afforded by an appeal. Rule 84.22. What constitutes adequate relief is addressed to the discretion of an appellate court and prohibition will lie when the facts and circumstances of the particular case demonstrate unequivocally that there exists an extreme necessity for preventive action. Derfelt v. Yocom, 692 S.W.2d 300, 301 (Mo. banc 1985). An action in excess of trial court jurisdiction is such an act. State ex rel. Baldwin v. Dandurand, 785 S.W.2d 547, 549 (Mo. banc 1990).

In addition, the right to appeal is purely statutory. State v. Murphy, 626 S.W.2d 649, 650 (Mo.App.1981). Although Respondent contends the State would have a right to appeal, he cites no case law to support his position. Independent research fails to disclose any instance in which the [395]*395State was permitted to appeal from a sentencing. The State’s right to relief by way of appeal is, at best, doubtful. Based upon the foregoing, we deny Respondent’s procedural challenges to Relator’s application for a writ and proceed to the substantive merits of this writ application.

Respondent’s order of February 19,1993, provided in pertinent part:

The Court herein addresses the parties and announces his intention with regard to sentencing the defendant, to wit, that the defendant will be sentenced to serve a term of 3 years on the charge of Armed Criminal Action to run concurrent with the term previously imposed in Count I: Assault 2nd where this Court sentenced the defendant to serve a term of 5 years (five) on July 26, 1991.

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Bluebook (online)
852 S.W.2d 392, 1993 Mo. App. LEXIS 592, 1993 WL 128186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-mcculloch-v-schiff-moctapp-1993.