Opinion
No. WD 65069
January 10, 2006
Appeal from the Circuit Court of Vernon County, The Honorable Gerald D. McBeth, Judge.
Timothy S. Donaldson appeals the circuit court's judgment following a jury trial committing him to the custody of the Department of Mental Health for confinement as a sexually violent predator. Donaldson asserts that the circuit court erred in denying his motion to dismiss for failure to try the case within 90 days of the circuit court's declaration of a mistrial, as required by Section 632.495, RSMo Supp. 2004. We agree and reverse the circuit court's judgment.
Because this issue is dispositive, we need not address Donaldson's remaining contentions on appeal that the circuit court erred in denying his motion to dismiss because his due process rights were violated by the state's seeking to commit him as a sexually violent predator and that the circuit court abused its discretion in admitting evidence that he suffers antisocial personality disorder because such disorder cannot satisfy the statutory requirement of "mental abnormality."
On December 3, 1999, the attorney general filed a petition on the state's behalf asking the circuit court to commit Donaldson as a sexually violent predator. On May 16, 2001, a jury found that Donaldson was a sexually violent predator, and the circuit court entered a judgment and commitment order in accordance with the jury's verdict. In response to Donaldson's appeal, the state conceded that the Supreme Court's decision in In the Matter of the Care and Treatment of Thomas, 74 S.W.3d 789 (Mo. banc 2002), dictated that Donaldson was entitled to a new trial. On July 10, 2002, this court reversed the circuit court's judgment and remanded the case to the circuit court for a new trial.
The circuit court called the case for trial on January 27, 2004, but declared a mistrial because an insufficient number of potential jurors was available following voir dire. Ninety-nine days later, on May 5, 2004, Donaldson filed a motion to dismiss for the failure to try the case within 90 days following the declaration of a mistrial. The circuit court entered in its docket on May 5, 2004: "Motion to Dismiss is over ruled. Court finds the Administration of Justice require same. Trial set Sept 29, 30, and Oct 1, 2004 at 9:00 a.m. 100 jurors requested."
The record does not reflect why the circuit court waited 18 months after this court's reversal to convene another trial. According to the docket sheet, one motion for continuance was filed.
Donaldson filed petitions for writs of prohibition in this court and in the Supreme Court, but the courts summarily denied the petitions without opinions.
The circuit court convened a trial on September 29, 2004. A jury found that Donaldson was a sexually violent predator, and the circuit court entered a judgment, ordering Donaldson's commitment to the department's custody. Donaldson appeals.
Donaldson contends that the circuit court erred in denying his motion to dismiss for failure to try the case within 90 days of the declaration of a mistrial as required by Section 632.495. Section 632.495 says:
The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. If such determination that the person is a sexually violent predator is made by a jury, such determination shall be by unanimous verdict of such jury. Any determination as to whether a person is a sexually violent predator may be appealed. If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the director of the department of mental health for control, care and treatment until such time as the person's mental abnormality has so changed that the person is safe to be at large. . . . If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct the person's release. Upon a mistrial, the court shall direct that the person be held at an appropriate secure facility, including, but not limited to, a county jail, until another trial is conducted. If the person is ordered to the department of mental health, the director of the department of mental health shall determine the appropriate secure facility to house the person. Any subsequent trial following a mistrial shall be held within ninety days of the previous trial, unless such subsequent trial is continued as provided in section 632.492.
We added the emphasis.
Section 632.492, RSMo Supp. 2004, says, "The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced."
The circuit court did not hold a trial within 90 days of Donaldson's previous trial that ended in a declaration of mistrial. The record also does not reflect that either party sought a continuance or that the circuit court on its own motion continued the case within the 90 days. After the 90 days expired, Donaldson filed a motion to dismiss on the ground that the circuit court did not convene a retrial within 90 days. The circuit court overruled Donaldson's motion on the ground that the "Administration of Justice" required it.
Noting that the statute does not provide a sanction for the failure to have a trial within 90 days of a mistrial, the state asserts that we should construe "shall" in Section 632.495 as directory rather than mandatory. Whether or not "shall" in the context of Section 632.495 is directory or mandatory appears to be an issue of first impression.
"Generally, the word `shall' connotes a mandatory duty." Bauer v. Transitional School District of the City of St. Louis, 111 S.W.3d 405, 408 (Mo. banc 2003). But, "[w]here the legislature fails to include a sanction for failure to do that which `shall' be done, courts have said `shall' is directory, not mandatory." Farmers and Merchants Bank and Trust Company v. Director of Revenue, 896 S.W.2d 30, 33 (Mo. banc 1995).
The Supreme Court, however, has instructed that "the presence or absence of a penalty provision is `but one method' for determining whether a statute is directory or mandatory." Bauer, 111 S.W.3d at 408 (citation omitted). "The absence of a penalty provision does not automatically override other considerations." Southwestern Bell Telephone Company, Inc. v. Mahn, 766 S.W.2d 443, 446 (Mo. banc 1989). "Whether the statutory word `shall' is mandatory or directory is primarily a function of context and legislative intent." Bauer, 111 S.W.3d at 408.
The sexually violent predator law evidences the General Assembly's intent that all proceedings surrounding civil commitment be held expeditiously, and rightly so. A civil commitment impinges on a fundamental right of liberty. In the Matter of the Care and Treatment of Norton, 123 S.W.3d 170, 173 (Mo. banc 2003). The time limits set forth by the General Assembly evidence its intent to protect this liberty interest.
In addition to the time limit imposed upon the circuit court to convene a trial following a mistrial, the General Assembly declared in Section 632.492 that the initial trial be convened "[w]ithin sixty days after the completion of any examination held pursuant to section 632.489[.]" The legislature further provided that the circuit court could grant a continuance only when a party asked for it — and then only for good cause — or on its own motion, but only when administration of justice required it and the respondent would not be substantially prejudiced. Section 632.492.
The legislature's providing a provision for continuances further evidences its intent that the time limit for holding a trial after a mistrial be mandatory and that it intended for the proceeding to occur in a prompt and timely manner. Had it intended for "shall" to be merely directory, it would have had no reason to provide specific guidance on when a continuance may be granted. Finding the time limits as directory rather than mandatory would render the limitations on continuances meaningless.
The state concedes that Missouri's violent sexual predator law was modeled after Kansas statutes. Because this is an issue of first impression, we find it instructive to examine cases from Kansas concerning the issue. In determining an issue similar to the one that we face in this case, Kansas' supreme court has ruled that the trial court loses jurisdiction over a sexually violent predator case if it does not convene a trial within 60 days after a probable cause hearing. In the Matter of the Care and Treatment of Searcy, 49 P.3d 1 (2002) (construing K.S.A 2001 Supp. 59-29a06). In that case, the Searcy court held that "the 60-day period stated in K.S.A. 2001 Supp. 59-29a06 is jurisdictional, mandatory, and a statutory right[.]" Id. at 10. The court concluded, "[B]ecause Searcy was not brought to trial within 60 days of his waiver of the right to contest the probable cause finding and the record contains no indication that the trial court granted a continuance prior to the expiration of those 60 days, Searcy's rights under the Act were violated." Id.; see also In the Matter of the Care and Treatment of Blackmore, 39 P.3d 89 (Kan.Ct.App. 2002) ( superseded by statute as stated in In the Matter of the Care and Treatment of Hunt, 82 P.3d 861 (Kan.Ct.App. 2004)); In the Matter of the Care and Treatment of Brown, 978 P.2d 300 (Kan.Ct.App. 1999) ( superseded by statute as stated in Hunt, 82 P.3d at 861).
In response to Searcy and other Kansas appellate cases, the Kansas legislature amended the sexually violent predator act to provide that none of the time limits, as originally enacted or as amended, was intended to be mandatory or to otherwise affect the courts' jurisdiction. See K.S.A. 2004 Supp. 59-29a01 and K.S.A. 2004 Supp. 59-29a06. Missouri's legislature has not followed suit.
Given the liberty interest at stake in these sexually violent predator cases, we conclude that the time limit for holding a trial after a mistrial imposed by the legislature in the sexually violent predator law is mandatory and not merely directory. The mandatory nature of the time limit requires a continuance to be sought and granted before the expiration of the time limit. Nothing in the record suggests that the circuit court ever concerned itself with the 90-day period or attempted to set the matter for trial within 90 days. The circuit court, therefore, should have granted Donaldson's motion to dismiss because of its failure to try the case within 90 days of the declaration of a mistrial as required by Section 632.495.
See also State v. Kinder, 830 S.2d 832, 833 (Fla. 2002) ("[T]he thirty-day time period provided for trial in [FLA. STAT. Section] 394.916(1) [1999], although not jurisdictional, is mandatory and, if there has not been a prior continuance for good cause granted pursuant to section 394.916(2), commitment proceedings should be dismissed."); State v. Goode, 830 S.2d 817, 823 (Fla. 2002) ("`[T]he intent of the legislature in enacting the thirty-day time limit was to ensure that detainees be brought to trial without undue delay. Therefore, we also conclude that the thirty-day time limit is mandatory.'") (citation and emphasis omitted); In re Matthews, 550 S.E.2d 311, 314-15 (S.C. 2001), cert. denied, 535 U.S. 1062 (2002) (trial within 60 days of a probable cause hearing is mandatory but not jurisdictional, but, by not filing a motion to dismiss, detainee waived right to challenge the state's noncompliance with the requisite time period).
We reverse the circuit court's judgment.
Victor C. Howard, Judge, and Ronald R. Holliger, Judge, concur.