Harkins v. Lauf , 532 S.W.2d 459 ( 1976 )

MORGAN, Judge.

Appellant sought a declaratory judgment that his sentence of twenty-five years for armed robbery commenced on March 28, 1969. After an evidentiary hearing, the trial court held that the sentence commenced on October 4, 1971, and appeal was perfected to the Court of Appeals, Kansas City District. Upon application of respondent, the cause was ordered transferred to this court and we consider the same as on “original appeal.” Rule 83.09.

On September 1, 1968, appellant was arrested in Poplar Bluff for armed robbery in connection with the robbery of the Puxico State Bank. The next day he posted bond and was released. Approximately two months later, appellant was arrested by federal authorities for the robbery of a bank in Tennessee and held under charges pending in the United States District Court (Western District) of that state. The record reflects that appellant was held in federal custody either in Memphis or at the Federal Medical Center in Springfield, Missouri, during all times of interest in the instant case. While appellant was in the medical center, federal marshals acting in pursuance to a writ of habeas corpus ad prosequendum issued by the Circuit Court of Butler County, Missouri, brought him to Poplar Bluff. There the appellant entered a plea of guilty to the pending charges on March 28, 1969, and was sentenced to imprisonment for a term of twenty-five years under a judgment which provided that the sentence was “to commence on the 28th day of March, 1969 . . .” Immediately thereafter the marshals took appellant to Memphis, Tennessee, for proceedings related to the federal charge. After hearings concerning his mental competency, appellant was committed again to the medical center under 18 U.S.C., Section 4246, until he should be adjudged mentally competent to stand trial or until the charges pending against him should be otherwise disposed of according to law.¹ After some thirty-one months, it appears that the federal charges were dismissed and he was ordered released. Pursuant to a detainer filed by the state, appellant was released to authorities of Missouri and on October 4, 1971, he was received by the Missouri Department of Corrections.

The question becomes obvious. Must the Department of Corrections credit appellant on the state sentence with the thirty-one month period of federal confinement?

We first point out that the portion of the judgment calling for the sentence to “commence” on March 28,1969, is not dispositive and in fact has no bearing whatever. As recently said in Johnson v. Haynes, 504 S.W.2d 308, 310 (Mo.App.1973):

The courts of this State have repeatedly held that the commencement of a sentence is by operation of law. A circuit court has no power to fix a date for the commencement of a sentence. If such a date is fixed, it is surplusage. Higlin v. Kaiser, 352 Mo. 796, 797, 179 S.W.2d 471, 472 (banc 1944); State v. Amsden, 299 S.W.2d 498 (Mo.1957); State v. Hicks, 376 S.W.2d 160 (Mo.1964); State v. Testerman, 408 S.W.2d 90 (Mo.1966). The Department of Corrections may ignore the erroneous and improper statement and commence the sentence when the petitioner is actually received. State v. Trevino, 428 S.W.2d 552 (Mo.1968).

Jackson v. Kaiser, 353 Mo. 919, 185 S.W.2d 784 (banc 1945), often quoted as the answer in this state to the question posed, involved similar facts. The following excerpts are taken therefrom:

“The chief rule which preserves our two systems of courts from the actual conflict of jurisdiction is that the court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose.” Ponzi v. Fessenden, 258 U.S. 254, loc. cit. 260, 42 S.Ct. 309, loc. cit. 310, 66 L.Ed. 607, 22 A.L.R. 879. See Cato v. Smith, 9 Cir., 104 F.2d 885; Zerbst v. McPike, 5 Cir., 97 F.2d 253.

“As an easy and flexible means of administering justice and of affording each sovereignty the right and opportunity to exhaust its remedy for wrongs committed against it, there has evolved the now well established rule of comity which is reciprocal, whereby one sovereignty having exclusive jurisdiction of a person may temporarily waive its right to the exclusive jurisdiction of such person for purposes of trial in the courts of another sovereignty. Thus the offender is accorded a speedy trial and the administration of justice is expedited by the availability of evidence, which might through lapse of time be lost, but such a waiver is a matter addressed solely to the discretion of the sovereignty, or its representatives having power to grant it. Ponzi v. Fes-senden, supra, and Ex Parte Aubert, D.C., 51 F.2d 136. The privileges granted by this flexible rule of comity should and must be respected by the sovereignty to which it is made available, and this respectful duty is reciprocal, whether federal or state, because neither sovereignty has the power to override it. Under the free exercise of this rule, no right or immunity granted by the constitution, laws, or treaties of the United States, is invaded or impaired.” Lunsford v. Hudspeth, 10 Cir., 126 F.2d 653, loc. cit. 655. (l.c. 786).

The next point raised by petitioner is stated in his brief as follows: “Petitioner’s Missouri sentence began to run on the day of sentence. It was interrupted and waived when the State authorities surrendered him to the United States Marshal. The State waived its claim and petitioner cannot be compelled to serve his sentence in installments.”

The petitioner contends that by virtue of Section 4106, Mo.R.S.A., which provides that when a person is convicted the sheriff shall “without delay” deliver the convict to the keeper of the penitentiary, his State sentence started on December 5, 1941, and that he is entitled to credit on his State sentence for the time he served in the Federal penitentiary. Or, to state his contention in another way, his State sentence started on the day he was sentenced, and the State waived its right to start his State sentence after the expiration of his Federal sentence, this for the reason that he cannot be compelled to serve his sentence in installments.

There might be some merit in petitioner’s contention if the State court had exclusive custody of the petitioner on the date he was sentenced by the State court. But in this case, the Circuit Court did not have exclusive custody of the petitioner on the date he was sentenced in that court, (l.c. 787).

As said in Brown v. State, 452 S.W.2d 176 (Mo.1970), l.c. 178:

“A prisoner has no standing to choose between two sovereignties each desiring his custody. He does not have a choice of keepers.” United States ex rel. Spellman v. Murphy, 7 Cir., 217 F.2d 247, 251. Whether the state should voluntarily surrender a prisoner to the federal authorities to answer a federal charge or whether the federal government should voluntarily surrender a convicted prisoner to the state to answer a state charge, without the consent of the prisoner, are questions of jurisdiction and custody for the determination of the two sovereigns under reciprocal rules of comity, and do not involve a personal right of the prisoner. Wall v. Hudspeth, 10 Cir., 108 F.2d 865, 866; Carson v. Executive Director, Department of Parole, 10 Cir., 292 F.2d 468; McDonald v. United States, 5 Cir., 403 F.2d 37, and cases cited, l.c. 38; Ponzi v. Fessenden, 258 U.S. 254, 260, 42 S.Ct. 309, 310, 66 L.Ed. 607, 611. “It is well established that where state authorities surrender a prisoner to the federal authorities for trial, sentence, and execution of sentence before he is to be returned to state custody, the prisoner has no standing to contest the agreement between the sovereigns as to the order of prosecution and execution of sentences; that is, he may not challenge either his original removal from state custody, or his return thereto after the completion of his federal sentence. See Derengowski v. United States Marshal, 8th Cir. 1967, 377 F.2d 223; Hall v. Looney, 10th Cir. 1958, 256 F.2d 59; United States ex rel. Moses v. Kipp, 7th Cir. 1956, 232 F.2d 147; Gunton v. Squier, 9th Cir. 1950, 185 F.2d 470; United States ex rel. Lombardo v. McDonnell, 7th Cir. 1946, 153 F.2d 919; Stamphill v. Johnston, 9th Cir. 1943, 136 F.2d 291, cert. denied, 320 U.S. 766, 64 S.Ct. 70, 88 L.Ed. 457. The State, by giving temporary custody to the federal authorities does so without a complete surrender of its prior jurisdiction over him. Hayward v. Looney, 10th Cir. 1957, 246 F.2d 56; Zerbst v. McPike, 5th Cir. 1938, 97 F.2d 253.” Bullock v. State of Mississippi, 5 Cir., 404 F.2d 75, 76. And see Jacobs v. Crouse, 10 Cir., 349 F.2d 857; Krupnick v. United States, 8 Cir., 286 F.2d 45.

Related questions are considered in Weber v. Mosley, 241 Mo.App. 727, 242 S.W.2d 273 (1951); State v. Whiteaker, 499 S.W.2d 412 (Mo.1973), cert. denied, 415 U.S. 949, 94 S.Ct. 1472, 39 L.Ed.2d 565; and State v. Weaver, 486 S.W.2d 482 (Mo.1972).

Under the facts of the instant case, it is quite obvious that at time of sentencing by the trial court appellant was not under the exclusive control and custody of Missouri authorities and that the sentence legally started at the time federal authorities released him to Missouri, if the precedents noted are to be followed.

Appellant concedes as much, but argues that § 546.615, RSMo 1969, is controlling. It provided (as of March 28, 1969), in part, that:

When a person has been convicted of a criminal offense in this state (1) the time spent by him in prison or jail subsequent to the date of his sentence and prior to his delivery to the state department of corrections shall be calculated as a part of the sentence imposed upon him .

The statute was originally enacted in 1959 and also provided that it was discretionary with the trial court to give credit for confinement prior to sentence. By amendment in 1971 both provisions were made mandatory. Are they applicable to confinement other than when the subject is a state prisoner? We think not. As noted, the second portion of the statute previously authorized discretion as to prior confinement by the sentencing court. Surely the General Assembly was not so presumptuous as to include courts other than those of Missouri. By the same token, the mandatory provisions as to subsequent confinement can only be construed to be applicable to that compelled under the laws of Missouri— and we so hold.

Further, it is suggested that “fairness” dictates that “credit” should be given on the state sentence because there is no federal sentence to which the federal confinement can be applied. The argument is not very persuasive, particularly in view of the fact the federal confinement was not related to the same offense for which appellant was sentenced in the state court. Whether or not the answer should be different if they did arise from the same factual setting can be decided when such a case is presented.

The judgment is affirmed.

HOLMAN, HENLEY, FINCH and DON-NELLY, JJ., concur. BARDGETT, J., dissents in separate dissenting opinion filed. SEILER, C. J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

1 . See Harkins v. State, 494 S.W.2d 7 (Mo.1973), wherein this court affirmed the trial court’s denial, after an evidentiary hearing, of appellant’s petition to withdraw his guilty plea under Rules 27.25 and 27.26 based on his mental state.