State v. Wilson

KENT E. KAROHL, Judge.

Defendant, Sherron Wilson, was convicted by jury of two counts of murder in the first degree, section 565.020.1 RSMo 1994, and two counts of armed criminal action, section 571.015 RSMo 1994. The jury acquitted defendant on an assault count and the associated armed criminal action. On May 22, 1998 the court sentenced defendant in accordance with the verdicts to life imprisonment without possibility of parole or probation on each of the murder counts and life imprisonment on each of the armed criminal action counts, with the sentences to be served concurrently. Defendant argues: (1) the juvenile court certification dismissing the juvenile court proceeding so he could be tried as an adult was issued by a juvenile court commissioner and not an Article V judge, thereby depriving the circuit court of jurisdiction; (2) the court erred in overruling an objection to the state’s comment on the defendant’s silence before trial; and, (3) the court erred in failing to submit jury instructions MAI-CR 313.04 and 306.06, including all applicable self-defense language. We dismiss the appeal for lack of trial court and appellate jurisdiction.

On July 23, 1997 a hearing was held pursuant to a petition filed by a deputy juvenile officer asking that defendant be prosecuted under the general criminal law. The petition alleged that defendant was age fifteen. Apparently, the juvenile court commissioner invoked the provisions of section 211.071 RSMo Cum.Supp.1997 to make such an order upon a showing that the defendant was not a proper subject to be dealt with under the Juvenile Code. The commissioner filed a document denominated “Judgment and Order” on July 24, 1997, which stated:

[T]he Court hereby sustains Movant/Pe-titioner’s Motion to Dismiss and ORDERS that the Petition heretofore filed be and is hereby dismissed in order to allow said Juvenile to be prosecuted under the General Laws of the State of Missouri. FURTHER, the Court Orders that this matter be transferred to the proper authorities for appropriate proceedings.

The circuit court clerk acknowledged the certification, which waived juvenile court jurisdiction over defendant. No Article Y judge reviewed or signed the order and judgment. Subsequently, on August 4, 1997 the Grand Jury indicted defendant on six charges. Trial began on March 23, 1998. On April 21, 1998 after defendant was tried as an adult, found guilty and sentenced, an Article V judge filed a “Judgment,” which ordered “that the Findings and Recommendations of Commissioner Nolan, entered on or about 7-24-97, be and are hereby adopted and confirmed as the Judgment of this Court.”

In Point I, defendant argues the juvenile court did not lose and the circuit court never acquired jurisdiction because defendant’s certification was issued by a juvenile court commissioner and not an Article V judge. We agree. The Missouri State Constitution vests the judicial power of the state in the courts, which are composed of judges. See Mo. Const. art. V, sections 1, 2, 13, 15, 16. Our Supreme Court has held that court documents not signed by a judge are not final judgments because they are not signed by a person selected for office in accordance with, and authorized to exercise judicial power under Article V. Slay v. Slay, 965 S.W.2d 845 (Mo. banc 1998). A final and appealable judgment consists of a writing, denominated “judgment”, signed by an Article V judge, and filed. Rule 74.01(a). Section 211.261 RSMo 1994 authorizes appeals from the juvenile court from final judgments. An order of a commissioner is not a judgment. Therefore, no final and ap-pealable judgment exists, and the trial court never obtained jurisdiction. Because the trial court never had jurisdiction, we have jurisdiction only to dismiss the appeal. In Re Moore’s Estate, 354 Mo. 240, 189 S.W.2d 229, 235 (1945).

The state argues that defendant “did not timely seek review of the commissioner’s findings and recommendations by an Article V judge pursuant to section 487.030.2,” thereby waiving his objection to certification. Specifically, the state argues that defendant’s failure to seek review of the certification by an Article V judge within fifteen days of receiving notice of the commissioner’s findings, waived his rights. In support, the state relies on State ex rel. York v. Daugherty, 969 S.W.2d 223 (Mo. banc 1998), which held that any party who fails to challenge a commissioner’s “judgment” waives the right to object to that “judgment,” and any party who assumes the benefits or burdens of the “judgment” is estopped from attacking it. State ex rel. York v. Daugherty, 969 S.W.2d 223, 225 (Mo. banc 1998). Thus, as to a party similarly situated “the commissioner’s findings and recommendations are as conclusive as if entered as the judgment of an article V judge.” Id. Substantively, the state argues that defendant “does not materially dispute a single one of Commissioner Nolan’s findings that form the basis for his decision to have appellant certified to be tried in the circuit court, as an adult.” The state concludes “appellant could have, and should have, challenged Commissioner Nolan’s findings and recommendations pursuant to [section] 487.030.2, RSMo Supp.1997, but he did not.” Jurisdiction was never an issue in Daugherty. It is the issue here.

The state misses the crux of the present controversy. The state’s brief never addresses defendant’s argument that he was deprived of due process because he was tried in a court that did not have jurisdiction. The certification is a jurisdictional requirement to divest the juvenile court of exclusive jurisdiction and must be a judgment entered by an Article V judge prior to trial. A reading of the appropriate statutes dictates such an action. Section 211.027 RSMo 1994 states, in pertinent part: “[u]pon the conclusion of the hearing in each case the commissioner shall transmit to the judge all papers relating to the case, together with his findings and recommendations in writing.” No Article V judge signed the certification until April 21, 1998 after defendant was tried as an adult. Section 211.071.7 provides a procedure for notification of a dismissal to the prosecuting attorney. Section 211.071.9 conditions prosecution as an adult or juvenile court dismissal.

The dissent also misses the crux of the present controversy and overlooks the requirements of Section 211.071.1, .5 and .6(4). The sections grant authority to the court to dismiss a juvenile court petition, the court to determine a child is not the proper subject to be dealt with under Chapter 211 and the court to make a “decision to transfer jurisdiction.” A commissioner is not the “court” and no court compiled with these requirements. Not one case cited by the dissent involved questions of exclusive jurisdiction of the juvenile court or an issue of a jurisdictional conflict. The dissent also fails to consider: (1) the stated purpose of Chapter 211 provided in section 211.011; and, (2) the limited authority granted a commissioner in section 211.027.

The circuit court did not acquire jurisdiction until at least April 21, 1998 when the Article V judge adopted the findings and recommendations of the commissioner. The circuit court may have jurisdiction for a future trial. However, the trial proceedings while the case was still pending in the juvenile court are a nullity and the judgment and sentence below are void for lack of jurisdiction. We do not reach defendant’s additional points on the merits.

Appeal dismissed.

ROBERT G. DOWD, Jr., P.J. dissents and CHARLES B. BLACKMAR, Senior Judge, concur.