Opinion
No. WD 60010
April 16, 2002
Appeal from the Circuit Court of Lafayette County, Missouri, The Honorable Dennis A. Rolf, Judge.
Terrence M. Messonnier, Esq., Lexington, MO, Attorney for Appellant.
John B. Neher, Esq., Lexington, MO, Attorney for Respondent.
Before: Smart, P.J., Lowenstein and Ellis, JJ.
Overview
This appeal concerns Missouri criminal procedure where there has been a prolonged period of prosecutorial torpor following arraignment. The disposition of this appeal necessitates a study of the interrelationship between granting relief under the grounds specified in the Speedy Trial Act, § 545.780 RSMo. 2000 (set forth infra) and any inherent power of a trial judge to dismiss an information for lack of prosecution.
All further statutory references are to RSMo. 2000 unless indicated otherwise.
Factual and Procedural History
The facts can be summarized in the following timeline:
1997
12/09 Two Uniform Complaint and Summonses (tickets) were issued for DWI and Failure.
12/22 The State filed formal, separate information on DWI. Also, the State filed complaint and summons (ticket), signed by assistant prosecutor (12/19) on Failure.
1998
02/02 Defendant requested continuance on DWI and Failure.
02/24 Trial court docket sheet indicates that information on both Failure and DWI were read to Defendant.
03/24 According to docket sheets, Defendant requested jury trial on DWI and on Failure, and both cases were certified to Division 1 for assignment.
04/27 The notations show that both sides appeared on Failure. "Cause continued."
10/22 Trial on DWI. Jury acquitted Defendant.
2001
February Judge discovered Failure ticket and on 2/7 set case for 3/19.
03/19 Failure case continued to 4/30.
04/30 Oral motion by Defendant to dismiss Failure based on statute of limitations and res judicata grounds.
05/07 Defendant filed written motion to dismiss (following 4/30 oral motion), arguing that statute of limitations had run since misdemeanor information was not filed within one year of offense and thus had never been filed.
05/14 State responded, arguing that docket sheets show on 2/24/98 information read to Defendant, and ticket signed by prosecutor filed 12/22/97 was sufficient as information.
05/14 After argument, the trial court stated, "The case is dismissed for lack of prosecution." Prosecutor stated "we will be filing a Notice of Appeal on this matter."
On December 22, 1997, the appellant, the State, filed separate misdemeanor charges of driving while intoxicated, § 577.010 (hereafter DWI), and failure to drive on the right half of the roadway, § 304.015 (hereafter Failure), against respondent Honeycutt arising out of an incident on December 9, 1997 in Lafayette County. Both charges were filed by the Uniform Complaint and Summons (two traffic tickets) in the Associate Division of Circuit Court. After the cases were transferred to the Circuit Court, the State filed a formal, typewritten information on the DWI, separate from the Uniform Complaint and Summons.
Honeycutt's counsel filed an entry of appearance in both cases. On March 24, 1998, Honeycutt requested a jury trial on both cases. Both matters were sent to the presiding judge for assignment, with the next court date set for April 27, 1998. However, on April 27, 1998, only the DWI case was formally called on the record. The DWI case was tried to a jury on October 22, 1998. Honeycutt was acquitted.
After Judge Dennis Rolf took the bench in January of 2001 and became the Circuit Judge for the Fifteenth Judicial Circuit, the court noticed that the Failure case had been inactive and was still pending. The court scheduled the case for hearing on March 19, 2001. No record was made on that date, and the case was continued until April 30, 2001. At that point, Honeycutt orally moved to dismiss the case based on statute of limitations and res judicata grounds. The case was continued to May 14, 2001. On May 7, 2001, Honeycutt filed his written motion to dismiss on the statute of limitations and res judicata grounds; the State filed its suggestions in opposition. The court on May 14, 2001, denied Honeycutt's motion, but then on its own dismissed the case for lack of prosecution. The State appeals the dismissal, asserting two points. First, the State argues that the trial court erred in sua sponte dismissing its case for lack of prosecution because the State was denied due process for absence of notice. Second, the State argues that the trial court erred in sua sponte dismissing its case because the case should be analyzed as a speedy-trial issue under Missouri's Speedy Trial Act, set forth infra .
Right to appeal
Although not raised by the parties, the court first notes that the state's right to appeal is purely statutory. State v. Hellems , 13 S.W.3d 302, 304 (Mo.App. 2000). That right is found under § 547.200.2, which states: "The state, in any criminal prosecution, shall be allowed an appeal in all other criminal cases except in those where the possible outcome of such an appeal would result in double jeopardy for the defendant."
The Fifth Amendment to the United States Constitution provides that no person "shall be subject for the same offense or twice put in jeopardy of life or limb." This provision is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland , 395 U.S. 784, 787, 794 (1969). Protection from double jeopardy is not necessarily triggered by successive prosecutions for a single offense. The test, known as the "same-element" analysis, is whether each offense contains an element not contained in the other; if not, the Double Jeopardy Clause bars a successive prosecution. State v. Burns , 877 S.W.2d 111, 112 (Mo.banc 1994)(citing Blockburger v. United States , 284 U.S. 299 (1932)) .
In determining whether the same conduct of a person may establish the commission of more than one offense such that a defendant may be prosecuted for each such offense, the appropriate statute is § 556.041, which appears to be a codification of Blockburger . Id . at 112. That statute allows multiple prosecutions for the same conduct unless:
(1) One offense is included in the other, as defined in section 556.046; or
(2) Inconsistent findings of fact are required to establish the commission of the offenses; or
(3) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or
(4) The offense is defined as a continuing course of conduct and the person's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.
§ 566.041.
Failure to drive on the right hand side of the road: 1) is not a lesser-included offense of driving while intoxicated, 2) does not require inconsistent findings of fact for a finding of guilty of driving while intoxicated, 3) is not necessarily a specific instance of the prohibition against driving while intoxicated, and 4) is not a part of the larger course of conduct of driving while intoxicated. Because none of the exceptions contained in that statute are applicable here and because each crime contains an element not found in the other, there is no double jeopardy issue here. Thus, on its face, the trial court's action is appealable under § 547.200.2.
Driving While Intoxicated contains the element of intoxication or drugged condition, § 577.010; failure to drive on the right half of the road does not. Failure to drive on the right half of the road requires just that, driving on the right half of the road, 304.015.2; driving while intoxicated does not. Under Blockburger's same-element analysis, Honeycutt's Sixth Amendment right against double jeopardy has not been implicated.
Preliminary Matters
As noted above, the State argues on appeal that the trial court erred in not complying with Missouri's Speedy Trial Act by dismissing its case for lack of prosecution. Before addressing the underlying issues on appeal, several matters must first be stated. First, (a) the prosecutor took no action on the Failure charge between the date of the grant of a continuance (4/27/98) and January-February 2001, the date the court discovered the file; and, (b) the trial court, sua sponte, called the parties' attention to the pending charge, but at no time did the prosecutor set this case for trial, nor did the defendant under the first subsection to § 545.780, set forth infra, ever announce that he was ready for trial and file a request for a speedy trial. Second, (a) the only matters asserted in the trial court, or in this court by the respondent Honeycutt, are that the prosecutor's failure to ever file a separate, formal information amounted to a failure to file a misdemeanor information within a year resulting in the statute of limitations having run on this ticket or that res judicata bars subsequent prosecution; and (b) the respondent, Honeycutt, never presented in either the trial court or this court a complaint of prosecutorial delay or an allegation of a speedy-trial violation. Third, the trial judge ignored Honeycutt's statute of limitation and res judicata arguments, and sua sponte, without considering speedy-trial considerations, dismissed the case on what seems to be the court's inherent or common-law right to control its own docket.
Should the trial court have sustained Honeycutt's motion to dismiss?
As a final preliminary matter, this court determines that the trial judge was correct in denying Honeycutt relief on his motion based on the statute of limitations and res judicata. As shown in the above chronology, the assistant prosecutor signed and dated the bottom of the Failure complaint and summons and then filed the uniform form less than two weeks after the arrest by the trooper. Signing the bottom of the ticket and timely filing the uniform complaint converted the ticket into an information. State v. Austin , 861 S.W.2d 334, 336 (Mo.App. 1993); State ex rel. Westfall v. Clifford , 617 S.W.2d 102, 103 (Mo.App. 1981). Therefore, the information was filed well within the time required for the filing of a misdemeanor. § 556.036.2(2). See also State v. Thompson , 810 S.W.2d 85, 85-86 (Mo.App. 1991); State v. White , 838 S.W.2d 140, 142 (Mo.App. 1992). The trial court was further correct in denying Honeycutt's motion on the res judicata issue.
Did the trial court have an inherent power to dismiss?
The State argues on appeal that the trial court erred in dismissing the cause against Honeycutt for failure to prosecute because such action ran afoul of Missouri's Speedy Trial Act (Act), § 545.780. That provision is set out below, and the relevant portion in subsection 2 is highlighted. It also should be emphasized that this statute contains no specific time limitations or delays which trigger the right to seek relief:
1. If defendant announces that he is ready for trial and files a request for a speedy trial, then the court shall set the case for trial as soon as reasonably possible thereafter.
The provisions of this section shall be enforceable by mandamus. Neither the failure to comply with this section nor the state's failure to prosecute shall be grounds for the dismissal of the indictment or information unless the court also finds that the defendant has been denied his constitutional right to a speedy trial. (Emphasis added.)
A trial court has the ability to dismiss, sua sponte, with or without prejudice, a civil case. Bindley v. Metro. Life Ins. Co . , 335 S.W.2d 64, 69 (Mo. 1960). Review of this ruling is for an abuse of discretion. Harris v. Munoz , 6 S.W.3d 398, 401 (Mo.App. 1999). The law is murky as to whether such an inherent right exists in a criminal case. Even if it does exist, whether the Act preempts an attempt to do what the judge did here — dismiss an old case for lack of prosecution — is also unclear.
Trial courts from time to time have dismissed criminal cases for lack of prosecution without considering § 545.780. See, e.g., State v. Flock , 969 S.W.2d 389 (Mo.App. 1998)(after the State asked the trial court to enter a nolle prosequi and trial court refused, trial court dismissed for lack of prosecution; appeal concerned solely the prosecutor's "unfettered" discretion to enter a nolle prosequi); State v. Folson , 940 S.W.2d 526 (Mo.App. 1997)(while the State's appeal of trial court's grant of new trial was pending, trial court scheduled a new trial; when the State refused to go forward until appeal process completed, the circuit court dismissed for lack of prosecution; appeal concerned solely the trial court's jurisdiction over a case on appeal).
Several questions must be addressed in this case where a Missouri trial judge dismissed for lack of prosecution a more-than-three-year-old misdemeanor information and where there had been no significant prosecutorial action since filing. Do Missouri courts have the inherent power to dismiss with prejudice a criminal information where there has been little or no prosecutorial action since filing? If there is no such power, then must any dismissal with prejudice for failure to prosecute be brought under and in compliance with the Act? If a dismissal with prejudice must accord with the Act, is a sua sponte dismissal for lack of prosecution, without reliance upon or compliance with the Act a final appealable judgment? Finally, does the language of the Act supercede trial courts' inherent power to dismiss without prejudice for prosecutorial delay?
What makes review of this decision so vexing is that while the trial court, sua sponte, dismissed the case for lack of prosecution, on appeal, the State, for the first time, asserts that if a dismissal was warranted, it should have been for a violation of the Act. If the procedural history of this case does present a speedy-trial violation, review must proceed despite the fact that the criminal defendant, to this day, has failed to raise, request, implicate or even discuss the Act.
The Act contemplates a defendant announcing his or her readiness for trial and filing a request for a speedy trial. In subsection 2, the Act states, "[n]either the failure to comply with the section nor the state's failure to prosecute shall be grounds for the dismissal," unless there is a court finding that the defendant has been denied the constitutional right to a speedy trial. The present-day version of the Act is equivalent to and patterned after Article 1, Section (a) of the Constitution of Missouri and the Sixth Amendment to the Constitution of the United States. State v. Bolin , 643 S.W.2d 806, 810-11 n. 5 (Mo.banc 1983), which construed the pre-1986 version of this statute that contained actual time limits for commencement of trial (180 days after arraignment), held the statute was actually broader than the constitutional guarantees. The court in State v. Bohannon , 793 S.W.2d 497, 503 (Mo.App. 1990) observed that analysis of any violation of the present version of the Act was pursuant to the constitutional scrutiny of Barker v. Wingo , 407 U.S. 514 (1972).
In Missouri, in order to obtain a determination whether a defendant has been deprived of the constitutional right to a speedy trial, trial courts are to adopt the analysis of Barker v. Wingo 407 U.S. 514 (1972). State v. Woodworth , 941 S.W.2d 679, 693 (Mo.App. 1997); State v. Davis , 903 S.W.2d 930, 936-37 (Mo.App. 1995). As such, trial courts will consider four factors: 1) Length of the Delay. In Missouri, an eight-month delay is presumptively prejudicial. State v. Ingleright , 787 S.W.2d 826, 831 (Mo.App. 1990). 2) Reason for the Delay. The State must show reasons which justify the delay, and delays attributable to the defendant will weigh heavily against the defendant. State v. Robinson , 696 S.W.2d 826, 832 (Mo.App. 1985). 3) Defendant's Assertion of the Right to a Speedy Trial. "Section 545.780 makes assertion of that right a prerequisite to a claim of violation of defendant's speedy trial right." Myszka v. State , 16 S.W.3d 652, 658 (Mo.App. 2000). While a defendant is not responsible for bringing himself to trial, the defendant must still make a formal request to assert the right to a speedy trial. State v. Woodworth, supra , 941 S.W.2d at 694; State v. Smith , 849 S.W.2d 209, 214 (Mo.App. 1993). 4) Prejudice to the Defendant. Factors as to prejudice include prevention of oppressive pretrial incarceration, anxiety and concern of accused, and the most important factor, the limitation of the defendant's ability to defend. State v. Bolin , 643 S.W.2d 806, 815 (Mo.banc 1983). Review of the trial court's speedy trial determination is for an abuse of discretion. U.S. v. Santiago-Beckerril , 130 F.3d 11, 21 (1st Cir. 1997).
A literal reading of the Act, if it does control the scenario at hand, would support the State's conclusion that this legislation controls any case where there has been prosecutorial delay and negates any independent authority of the trial judge to do what he did here. If the Act does indeed trump or nullify a trial court's inherent ability to dismiss for lack or failure to prosecute, then review of this case is affected. In hopes of making analysis of this seemingly straightforward case more comprehensible, the following questions and conclusions are now presented. First, is this a speedy trial case? No. Section 545.780.1 of the Act was never raised and Honeycutt never met its requirements. Further, § 545.780.2 was not followed in that the trial court made no findings on denial of constitutional rights to a speedy trial. Second, although the Act does not apply, is it still necessary to analyze the Act to determine whether the Act is the only means of dismissal available to a trial judge? Yes.
Because the answers to those questions warrant a conclusion that Missouri trial judges do not have the inherent power to dismiss a criminal information with prejudice for failure to prosecute, but can only do so in compliance with the Act, then because of the facts here, a third issue must be addressed: Is there an inherent power of a trial judge to dismiss an information without prejudice based solely on the non-constitutional grounds of prosecutorial inaction? The answer to that question is yes. Such an intrusion by the judiciary into the realm of prosecutorial discretion is minimal, but still affords a court the ability to call in the prosecutor, as here where the case has languished, State v. Knox , 697 S.W.2d 261, 263 (Mo.App. 1985), or just been forgotten. See State v. Barunsdorf , 297 N.W.2d 808 (Wis. 1980); City of Sun Prairie v. Davis , 595 N.W.2d 635 (Wis. 1999). But see State ex. rel. Griffin v. Smith , 258 S.W.2d 590, 593 (Mo. banc 1953)(language assessing almost unlimited discretion of only the prosecutor to nolle prosequi); State v. Morton , 971 S.W.2d 335, 340 (Mo.App. 1998)(court questioned jurisdiction of trial court to dismiss an information but was done in the context of dismissal with prejudice during the sentencing phase of case following guilty plea). In State v. Burns , 994 S.W.2d 941 (Mo. banc 1999), the Court allowed a trial court to dismiss without prejudice where the prosecutor failed to comply with a pre-trial order. In this context, the inherent powers of the court allow dismissal without prejudice for excessive pretrial delay by the prosecutor to aid the court in the orderly administration of the court's business. Cf. Higgins v. Dir. of Revenue , 778 S.W.2d 24, 26 (Mo.App. 1989).
There is no authority that a trial court in Missouri, prior to attachment of jeopardy, has the inherent power to dismiss a criminal case with prejudice. In fact, under the scenario in the case at bar (prosecution sits on the case for an inordinate amount of time after filing of charges), the only method a trial court has of dismissing an information or indictment with prejudice is to comply with § 545.780, Missouri's codification of the constitutional right to a speedy trial. All this having been said, it remains: A Missouri trial court can control prosecutorial delay in its criminal docket by dismissing a case, but may do so only without prejudice to refiling.
This court is not unmindful of the attempts of trial judges to control their criminal dockets. A dismissal without prejudice where the prosecution has either purposefully or not delayed bringing a case to trial and where the defendant has not announced readiness nor has filed a request for a speedy trial seems a toothless remedy. The legislature may, and is encouraged to, explore measures to allow judges to take other action on moribund informations and indictments. It appears that without amendment to the Act and where the defendant has not filed for speedy trial, the case can sit for years with no court intervention. (There may be very good reason for the defense tactic of doing nothing and hoping the case will eventually disappear.) But if the court does intervene, as many trial judges in this state attempt to do, by calling up a docket of aged cases, the only thing accomplished is dismissal of the case with the result that the State may re-file and then litigate.
If defendant's constitutional or statutory right to a speedy trial has been violated, he would be entitled to be discharged. State v. Armstrong , 624 S.W.2d 36, 41 (Mo.App. 1981).
Analysis under Federal Law
If Missouri had patterned its statutes or rules after the federal rules, as many states have, then this opinion would have read differently. Federal Rule of Criminal Procedure 48(b), titled "Dismissal," states:
By Court: If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing the defendant to trial, the court may dismiss the indictment, information or complaint. (emphasis supplied)
Under Rule 48(b), a "district court may dismiss even when the prosecutorial delay does not amount to a violation of the Sixth Amendment ." United States v. Jiang , 214 F.3d 1099, 1101 (9th Cir. 2000). This is true whether the dismissal is with or without prejudice. Id . However, a "district court must exercise this authority 'with caution,' especially in dismissing a case with prejudice, and it may dismiss with prejudice 'only after a forewarning to the prosecution that dismissal with prejudice will result from a failure to proceed to trial.'" United States v. Gatto , 763 F.2d 1040, 1050 (9th Cir. 1985). See also State v. Wells , 443 A.2d 60, 63-64 (Me. 1982) (purpose of Maine's rule, which was modeled after FRCP 48(b), was not only to ensure a criminal defendant's constitutional right to speedy trial,
A prior version of Missouri's Speedy Trial Statute, § 545.780 (5), RSMo 1978, which permitted a trial court to dismiss a defendant's motion in a criminal case 180 days after arraignment, did allow the dismissal to be with or without prejudice. State v. Lawson , 630 S.W.2d 185, 188 (Mo.App. 1982); State v. Mosby , 667 S.W.2d 25, 26 (Mo.App. 1984).
but also furthers important judicial policy considerations of relief of the trial court congestion, prompt processing of all cases reaching the courts and advancement of the efficiency of the criminal justice process. . . . It is a restatement of the inherent power of the court to dismiss a case for want of prosecution, and that power of the court is not circumscribed by the Sixth Amendment. The court can dismiss whenever there has been unnecessary delay without being required to decide whether the delay was of such a nature as to deprive the defendant of a constitutional right);
State v. Benn , 713 S.W.2d 308, 311 (Tenn. 1986)(court adopted federal analysis that speedy trial violation not necessary to dismiss under rule patterned after FRCP 48(b)).
Summary
No implication of a speedy-trial violation either motivated the trial court or influenced its decision. Therefore, the dismissal, even though the prosecutor indicated he would appeal, was without prejudice. The dismissal was not a final appealable judgment, and this court thus has no option other than to dismiss this attempted appeal. The action will be remanded, and the prosecutor has the right to re-file the information. There is a temptation to ameliorate this result and bring ultimate closure should the prosecutor persist by filing another information. Relying on the axiom of judicial economy and holding the defendant's motion to dismiss be deemed to have been for a speedy trial under the statute, would allow a disposition of a much too lengthy pending misdemeanor traffic violation. This cannot be done. The defendant has never raised a constitutional speedy-trial violation and, even had Honeycutt raised the Act in a motion, the trial court has never held a hearing nor made findings on the motion. Hellems , 13 S.W.3d at 304-05 . This court is unwilling to raise the matter for him under these circumstances, especially where the only mention of speedy trial comes from the prosecutor who sat on the case from December of 1997 until the court brought up the file in early 2001.
In conclusion, and returning to the issues addressed at the beginning of this opinion, the court makes the following conclusions: First, there appears to be no inherent power in trial judges to dismiss with prejudice a criminal complaint or information for lack of prosecution. Second, even if there was inherent authority for a court dismissal with prejudice, for any dismissal based on prosecutorial delay after passage of the Act, there must be compliance with the provisions of the Act. Third, a Missouri trial court still retains the inherent power to dismiss without prejudice a criminal case for lack of prosecution.
No matter what the trial judge intended, or how the prosecutor interpreted the court's action, without compliance with or implication of the Act, the dismissal in this case was nothing more than an exercise of a trial court's inherent power to dismiss an inactive criminal case without prejudice. Such an action was neither final nor appealable. The appeal is dismissed.
This case, as first noted, is about what actions a trial court may take in a criminal matter where the action has been inactive or dormant for a considerable period of time since filing. As discussed in the main portion of the opinion, a serious argument could be made that the legislature in adopting the current form of § 545.780 has preemptedany dismissal (with or without prejudice) based on lack of prosecution except for those instances where the trial court has made findings that the defendant has been denied his constitutional right to a speedy trial. This court does not interpret the Act as nullifying the right of a trial court to control its own docket by dismissing without prejudice criminal cases which remain inactive for long periods of time.
In those instances where a trial judge chooses to call up old files or to dismiss a particular case of long vintage, it is strongly recommended that the court call up the case and conduct a type of show-cause proceeding to allow the prosecutor to present reasons to the court why the case should not be dismissed.
All concur.