State v. Givance

711 S.W.2d 941, 1986 Mo. App. LEXIS 4167
CourtMissouri Court of Appeals
DecidedMay 20, 1986
DocketNo. 50224
StatusPublished

This text of 711 S.W.2d 941 (State v. Givance) 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 v. Givance, 711 S.W.2d 941, 1986 Mo. App. LEXIS 4167 (Mo. Ct. App. 1986).

Opinion

DONALD L. MANFORD, Special Judge.

This is a direct appeal from a jury conviction for burglary, first degree, in violation of § 569.160, RSMo 1978, and indecent exposure, in violation of § 566.130, RSMo 1978. Judgment affirmed.

Appellant’s sole point charges that the trial court erred to his prejudice and over his objection in trying him when the trial court did not have jurisdiction to try him.

Appellant presents no challenge to the substantive merits of the cause, therefore permitting a summary account of the pertinent facts.

On May 4, 1984, appellant agreed to cut the lawn of one Mrs. Suelflow of University City, Missouri. Appellant did not appear on that date. On May 7, 1984, Mrs. Suel-flow was awakened by the sound of a lawnmower. She then heard pounding and the breaking of glass. She investigated and found appellant standing naked in her living room.

Subsequent investigation by police determined that appellant had entered her home through a glass door and screen door. When observed by Mrs. Suelflow, appellant exposed his genitals to her. Appellant testified on his own behalf. The evidence closed. The jury returned its verdict. Judgment and sentence were entered. This appeal followed the overruling of timely filed post-trial motions.

The record reveals that from the outset and prior to trial appellant challenged the jurisdiction of the court to try him. The issue of jurisdiction was initiated by the trial judge. So that it can be better understood that the trial judge initiated the question and so that appellant’s position can be clarified, the following excerpt from the record reads:

Let’s see. The complaint was filed on May the 7th. Let’s see. There was a preliminary hearing held on May the 16th. Defendant was bound over on the felony. The felony information was filed on May the 16th. And a Count II, indecent exposure was filed on May 16th. And a Count III, property damage third degree. Indecent exposure being a Class A misdemeanor. Property damage being a Class B misdemeanor.
Thereafter, on January the 8th, 1985, the case was assigned by presiding judge to Division 34.
Okay. For the record, is there any objections with the assignment by the presiding judge in light of the potential argument that Judge Corrigan has no authority as presiding judge?
MR. WALKER [Public defender]: Yes, Your Honor, Defendant does object.
THE COURT: What’s your objection?
MR. WALKER: We’re objecting that this Court does not have the jurisdiction to try this case on the grounds that, although a properly elected and presiding — presiding judge may properly assign a case to an associate circuit court in his circuit for a felony trial, that the [943]*943present person, Judge Corrigan, was selected to a two-year term. By statute that term expires at the end of two years, and Judge Corrigan has not been properly re-elected as presiding judge. And, therefore, he’s without — He’s without the power to assign this case to this Court; and, therefore, this Court lacks the requisite jurisdiction.
THE COURT: Okay. Mr. Miller.
MR. MILLER [Prosecuting attorney]: Judge, I believe that his — Judge Corri-gan’s term has been extended by order of the Missouri Supreme Court. I think the Court has realized that the 21st Judicial Circuit cannot operate in a void, thus has taken this action. I think he is with power and jurisdiction to assign those cases to this Court, and the State has no objection to you hearing this matter.
THE COURT: Okay. Number one, there’s been no order from the Supreme Court.
MR. MILLER: That was my understanding.
THE COURT: In any account — no. The facts of the case are that Judge Corrigan supported some rule changes that the associates said were unconstitutional and illegal and filed a lawsuit. There are 12 associates, and, I think, 12 circuit judges were the defendants therein. Thereafter, Judge Pratt, who was sent down to hear the case, ruled that the associates were right and that the election rules were invalid.
The defendants indicated they were going to appeal, and Judge Pratt entered an order finding all the rules illegal and unconstitutional but staying any election until the Supreme Court rule. Okay?
And in his stay order he also indicated that Judge Corrigan was to remain as presiding judge until such time as the Supreme Court acted.
There’s some serious questions in my mind as to whether or not Judge Pratt had the authority to make that order. And in light of a case, and I don’t remember the exact title, but the case is a Maryland Heights incorporation case, whereby similar type of thing — There was an election as to whether — The dispute was whether or not this should be an election for the incorporation of Maryland Heights. In that case the court ruled that the election would continue. He was asked to stay the election; he refused to stay the election. It was my understanding it went both to the Court of Appeals and the Supreme Court as to whether or not there was any authority to stay the election pending, following a decision that the election should proceed, and what rule should be followed staying that election. It was a question as to whether that election should be stayed.
And the decision in the — I’m not sure if it was Mandamus or prohibition whatever it was — but the end was that both the Court of Appeals and the Supreme Court said there was no authority to stay the election.
In light of that, I think Judge Pratt’s order is probably illegal. Okay?
Now, what I’m faced with is, I’m a defendant in that lawsuit. Okay. I mean a Plaintiff in that lawsuit. And I guess, even if Judge Pratt has entered an illegal order, I’m bound by that illegal order until such time as somebody changes that illegal order.
My personal feeling is that, when this case — If this case were to go up on that point, Mr. Walker’s probably right and that it should be found that I don’t have any jurisdiction. Okay. I think I’m in a Catch 22 situation. I don’t think — I either don’t follow a statute or don’t follow an order in a lawsuit that I’m a party to, and I think I have to follow that order even if I think that order is improper.
I think, what you may be doing is, you may be giving the Defendant a free ride. You may be in the situation where, if he pleads and goes to trial and is found not guilty, at that point in time I don’t know how you’re going to be raising the objection that there’s no jurisdiction when you’re now arguing that there is jurisdiction.
[944]*944And, on the other hand, if he’s found guilty, I think Mr. Walker may well get the thing set aside.
So, I think we’re probably expending time and effort that may go down the tubes. But I’ll hear the ease because I’m not going to be said to say that I’m violating Judge Pratt’s order in a case where I’m a party, even though I think— personally think the order’s illegal. I think it probably contradicts that the ruling in the other case that I referred to, but I don’t see my proceeding as jeopardizing the Defendant.

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Related

Gregory v. Corrigan
685 S.W.2d 840 (Supreme Court of Missouri, 1985)
In re the Twenty-First Judicial Circuit
659 S.W.2d 764 (Supreme Court of Missouri, 1983)
Nolan v. Stussie
695 S.W.2d 869 (Supreme Court of Missouri, 1985)
In re Rules of the Circuit Court for the Twenty-First Judicial Circuit
702 S.W.2d 457 (Supreme Court of Missouri, 1985)

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Bluebook (online)
711 S.W.2d 941, 1986 Mo. App. LEXIS 4167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-givance-moctapp-1986.