State v. Weatherwax , 1980 Mo. LEXIS 384 ( 1980 )

ROBERT R. WELBORN, Commissioner.

Appeallant from judgment of conviction and fine of $35.00 for violation of 55 miles per hour speed limit.

At approximately 11:00 A.M., December 4, 1978, a highway patrolman, using radar, checked the speed of an auto on U.S. 36 in Caldwell County driven by Ralph Weather-wax, at 69 miles per hour. The trooper issued Weatherwax a Missouri Uniform Traffic Ticket, charging excessive speed in violation of Section 304.009 in driving 69 miles per hour in a 55 miles per hour zone. The charge was set for hearing on January 4, 1979.

On that date, a continuance was granted at the request of the defendant. The next day, the defendant filed an application in the Caldwell County Magistrate Court for change of venue and change of judge. The motion was overruled.

On January 18, 1979, the date to which the cause was continued, defendant filed a motion to disqualify the Associate Circuit Judge and the motion was sustained. An Associate Circuit Judge of Daviess County was appointed to hear the case, set for February 1, 1979.

On that date, the case was heard on a jury waived trial, the defendant found guilty and a fine of $25.00 assessed. On February 8, 1979, the defendant filed a motion for trial de novo and “Affidavit of Qualification.”

Thereafter a change of venue was granted and the cause transferred to the Platte County Circuit Court, Division II. The case was set for June 11, 1979. The defendant filed motions for discovery, for disclosure and for suppression of evidence on May 15, 1979. He also filed a motion to dismiss the information on the grounds that the statute under which he was charged was unconstitutional. The discovery motions as well as the motion to dismiss were overruled.

The defendant filed a motion to disqualify the Judge of Division II of the Platte County Circuit Court. The judge disqualified himself and certified the cause to Division I of the court which then assigned it to Division III.

Trial with a jury waived was held in Division III on September 24, 1979. On October 9, 1979, the judge filed findings of fact and conclusions of law finding defendant guilty.

Defendant filed a motion for new trial in which he charged that the court erred in overruling his motion for acquittal at the close of the state’s case on the constitutional grounds urged in his motion to dismiss. The motion for new trial was overruled and a fine of $35.00 assessed.

Defendant appeals to this Court, asserting jurisdiction on the grounds that Section 304.009 is unconstitutional.

The foregoing recital of the course of this case in the courts below shows that appellant raised his constitutional objections for the first time at the de novo appeal, following the first trial before the Associate Circuit Judge of the Caldwell County Circuit Court. Appellant could have raised his constitutional objections in that court (Rule 22.09, now repealed).

For the reasons stated in In Re Estate of C. W. Davidson, Deceased. Pauline Earring, Appellant, vs. Verna Davidson, et al., Respondents, No. 61934, 607 S.W.2d 690 (Mo.), decided contemporaneously, there has been no proper raising of a constitutional question which would invoke the jurisdiction of this Court.

However, rather than dismissing the appeal, as in Davidson, the cause is transferred to the Missouri Court of Appeals, Western District, because the appellant’s motion for new trial raised an evidentiary question which appellant may desire to pursue in that court.

Transferred to Court of Appeals.

PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the court.

All of the Judges concur.