text:
    TEALIN COMPANY, a Missouri Corporation, Appellant, v. CITY OF LADUE, a Municipal Corporation, Respondent.
    No. 59250.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1976.
    Rehearing Denied Oct. 12, 1976.

      Carroll J. Donohue, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for appellant.
    F. Douglas O’Leary, Moser, Marsalek, Carpenter, Jaeekel, Keaney & Brown, St. Louis, for respondent.
   BARDGETT, Judge.

Plaintiff-appellant Tealin Company (Tea-lin), owner of a vacant lot in the city of Ladue, St. Louis county, sued in circuit court to enjoin the enforcement of Ladue’s single-family, residential zoning ordinance as to Tealin’s property on the grounds that the ordinance as applied to Tealin’s property was unreasonable, unconstitutional, unlawful, and void. The circuit court held the ordinance reasonable and denied injunctive relief. On appeal to the Missouri Court of Appeals, St. Louis district, the judgment of the circuit court was reversed and the cause remanded with instructions to grant Tealin injunctive relief. Thereafter, this court granted Ladue’s application to transfer pursuant to Art. V, section 10, Mo.Const., as amended 1970.

Prior to the filing of the circuit court suit, Tealin had applied to Ladue for a change of zoning to “F” commercial in order to permit the construction of a two-story-office building. Ladue’s zoning and planning commission recommended against the rezoning and the city council denied the application for rezoning.

The city of Ladue is primarily a residential municipality located within the St. Louis metropolitan area and is a suburb of the city of St. Louis. It is located in the central part of St. Louis county and the east side of Lindbergh Boulevard forms the western boundary line of Ladue. Lindbergh at this point is a heavily-traveled, north-south, four-lane, divided highway.

Ladue became a fourth-class city in 1936 by the consolidation of three villages and established a zoning commission in 1937. A zoning ordinance was adopted in 1938. The property involved in this case became part of the city of Ladue by annexation in 1947. That annexation extended the western boundary one-fourth mile west to its present location at the east edge of Lindbergh, north to the city of Creve Coeur, and south to Huntleigh Village. The newly annexed territory was zoned single-family residential except for those portions where the existing use was commercial. The commercially zoned areas consisted of a small zone on the southeast corner of Lindbergh and Conway fronting about two hundred feet on Lindbergh and two larger tracts located on the northeast and southeast corners of Lindbergh and Clayton Road. Conway is about one and one-fourth miles south of Tealin’s property and Clayton Road is about two-thirds of a mile further south of Conway. Ladue’s western boundary bordering on Lindbergh is about three miles long. All of the property bordering on Lindbergh in Ladue is and has been since 1947 zoned residential except for the three parcels noted.

The vacant lot which is the subject of this case is 1.11 acres in area. It is located at the extreme northwest corner of Ladue fronting 244.71 feet on Lindbergh and was part of a tract of land which, with the exception of this lot, was subdivided by Tealin’s predecessor in title into a residential subdivision known as Tealbrook Estates containing thirty-one homes. The dividing line between Ladue and Creve Coeur runs east and west through the center of Teal-brook Estates and lies just a few feet to the north of Tealin’s lot. South Tealbrook Drive abuts the south side of Tealin’s lot and provides access on the south to Teal-brook. North Tealbrook Drive enters Lindbergh about four hundred feet north of the Tealin property. Between Tealin’s lot and North Tealbrook Drive is a “jug handle” which permits northbound traffic on Lindbergh to turn around and proceed south on Lindbergh. North and South Tealbrook Drives form sort of a horseshoe “Pi” with Tealin’s lot and the “jug handle” located between the two sides of the horseshoe. The subdivision of Tealwood is in Creve Coeur and is located immediately north of Tealbrook. Tealwood is also zoned residential. North of Tealwood is a large Monsanto Company facility. The property fronting on the west side of Lindbergh is in Creve Coeur and in the main is zoned commercial and utilized as such with some exceptions. Pictured below is a portion of Ladue’s exhibit B which, more than words can do, graphically portrays the relative location and use of property in Ladue. The lot marked “T” is Tealin’s property. “R” denotes existing residences. “V” denotes vacant lots. “C” denotes commercial and “S” denotes a school. All numbered lots are residential and as can be seen from the plat the residences in Ladue where the property abuts on Lindbergh are, with a few exceptions, reached by subdivision streets rather than directly from Lindbergh.

Tealin Company is a corporation formed by Mars Oil Company or its affiliate Marine Oil Company and took title to the lot in question. It was purchased for $21,500 by Tealin in June 1971 for the purpose of constructing a two-story-office building to be used as the home office of Marine Petroleum Company and rental to other tenants. To this end, Tealin made application to La-due in October 1971 for a rezoning to “F” commercial which was denied.

The import of Tealin’s evidence in circuit court was that the single-family-zoning classification was unreasonable because the highest and best use of the property (the use most productive for the property owner, the surrounding neighborhood, and the city) was for office usage. One of Tealin’s expert witnesses on urban regional planning testified that the negative influence of Lindbergh Boulevard — its heavy volume, noise reverberations, and having to look at the traffic — rendered the property unadaptable for a single-family residence. Another witness for Tealin testified that as zoned residential the property was worth $12,000 and if zoned commercial its value would be $97,000. Tealin’s witnesses also testified that the proposed office development would serve as a protective buffer between Lindbergh and the Tealbrook residences and would not adversely affect the value of those residences. Tealin’s evidence also emphasized the commercial use of property in Creve Coeur across Lindbergh from Ladue as a basis for arguing that the character of the region had changed substantially over the years.

Ladue’s evidence was that Tealin’s lot was reasonably usable for a single-family residence but that if so used the residence should front on Tealbrook (not Lindbergh) and that the planting of trees, shrubs, and the building of a fence would give protection from Lindbergh and its traffic. Most of the homes built on property abutting Lindbergh do not face Lindbergh and have utilized shrubs, trees, fences, etc., to shield the homes from noise and traffic emanating from Lindbergh.

Appellant Tealin’s first point is: “The trial judge erred in upholding the single-family classification of plaintiff’s property because the property cannot reasonably be used for single family purposes and residential zoning thereof bears no substantial relationship to the public health, safety, morals or general welfare.”

The case principally relied upon by Tealin is Huttig v. City of Richmond Heights, 372 S.W.2d 833 (Mo.1963). The court of appeals, St. Louis district, considered Huttig to be parallel to the instant case, both as to factual and legal issues and, therefore, controlling of the decision.

The rules governing the resolution of the issues presented by the instant case were concisely stated in Vatterott v. City of Florissant, 462 S.W.2d 711, 713 (Mo.1971), as follows: “Whether the classification and enforcement of a zoning ordinance is reasonable and constitutional or whether it is arbitrary and unreasonable and therefore unconstitutional in its application to a specific property depends upon the evidence and the facts and circumstances of each case. City of Richmond Heights v. Richmond Heights Memorial Post Benev. Ass’n, 358 Mo. 70, 213 S.W.2d 479, 480[3], As collected in Desloge v. County of St. Louis, Mo., 431 S.W.2d 126, 131-132 [3-6]: The legislative body has the duty to determine the use classification for any particular area. Unless it appears that the determination by that body is arbitrary and unreasonable, the court cannot substitute an opinion for the council’s determination. If the council’s action is fairly debatable, the court cannot substitute its opinion. The legislative body’s enactment is clothed with a presumption of validity, and he who would challenge the reasonableness of the ordinance as applied to specific property has the burden of proving unreasonableness. See also Landau v. Levin, 358 Mo. 77, 213 S.W.2d 483; Flora Realty & Inv. Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771, 778; Downing v. City of Joplin, Mo., 312 S.W.2d 81. These concepts apply equally to rezoning and refusal to rezone. Wrigley Properties, Inc. v. City of Ladue, supra, 369 S.W.2d 1. c. 400[3].”

The development of the city of La-due through 1948 is set forth in Flora Realty & Investment Co. v. City of Ladue, supra. The evidence in the instant case establishes that Lindbergh is no longer the western perimeter of the St. Louis metropolitan area but, as a result of the movement west of people, business, and industry, has now become the central north-south corridor of a heavily populated region within which is located substantial commercial and industrial establishments. Some municipalities such as Creve Coeur have zoned or rezoned strips of property abutting Lindbergh to commercial and, as noted, Ladue has done so at Clayton and Lindbergh. It seems obvious that commercial and business development of property naturally follows as a matter of course whenever substantial numbers of people live in an area and become-a viable market for the sale of goods and services by others. But this does not mean that just because there has been commercial development in a given area that zoning ordinances must automatically give way to an individual’s desire to establish a business enterprise in a section zoned residential. Nor does it mean that just because the land will bring a higher price if used commercially rather than residentially that the residential zoning restrictions must give way to commercial usage. Huttig v. City of Richmond Heights, 372 S.W.2d at 840; Flora Realty & Inv. Co. v. City of Ladue, supra; Wrigley Properties, Inc. v. City of Ladue, supra. If the price land would bring for commercial use as compared to residential use were the criterion upon which the continued validity of a residential zoning ordinance depended, there would be few, if any, residentially zoned districts in a metropolitan area that would remain residential. This is so because it stands to reason that property in a heavily populated area that can be used for business or commercial purposes will command a higher price than if the use is restricted to single-family dwellings — a nonrevenue producing use for the occupants.

Huttig presented a situation where the city of Richmond Heights had zoned a strip of land along the south side of Clayton Road for commercial use beginning at a point about 732 feet west of Hanley Road, the west edge of the Huttig property, west to Brentwood Boulevard. Huttig’s land began about two hundred feet west of Hanley Road and fronted 532 feet on Clayton Road and was zoned single-family residential. On the commercially zoned property beginning at Huttig’s west property line, there were, respectively: “a restaurant (The Pancake House, built in 1934), a combination office building (Gulf Oil) and filling station, a vacant filling station, an occupied filling station, a Howard Johnson restaurant, a filling station, another office building and filling station (DX), a catering company, a restaurant, a florist shop, a drive-in restaurant, a filling station and another filling station. Some of these were built before 1941, some since. These uses extend to Brentwood Boulevard. . . . Another area of approximately 50 acres between plaintiffs’ tract and Brentwood Boulevard has also been zoned ‘G-l’ and on this is located (somewhat back to the south of Clayton Road) a combination 48-lane bowling alley, restaurant and cocktail lounge.” Huttig, supra, 372 S.W.2d at 835-836. The north side of Clayton Road between Hanley and Brentwood is in the city of Clayton and had been zoned and utilized commercially prior to and since 1941.

The overall picture presented by Huttig is one where both sides of Clayton Road, a major thoroughfare, had been zoned, developed, and was being utilized for commercial establishments all the way from Hanley Road to Brentwood Boulevard, with the single exception of Huttig’s property, and that Richmond Heights itself had zoned this entire south side of Clayton Road for commercial except for Huttig’s property. There was no residential use being made of any of the property from Hanley to Brent-wood.

Although not stated as such in the Huttig decision, it appears that whatever claim of reasonableness Richmond Heights may have had in the past for residential zoning on Clayton Road west of Hanley Road had long since been abandoned by its own acts in extensively rezoning the property west of Huttig’s to commercial and allowing the commercial development of the property to take place.

Under the facts in Huttig, the court concluded, inter alia, that “Clayton Road to the west of this property [city of Richmond Heights] is entirely commercial to a point beyond Brentwood Boulevard; Clayton Road across the street [city of Clayton] is entirely commercial for at least the same distance west, and for a block or more (Bettendorf’s) to the east of Hanley Road. . . .” 372 S.W.2d at 839. Many other findings relating to the facts of Huttig were also announced.

There are some parallels between Huttig and the instant case, e. g., Clayton Road and Lindbergh Boulevard are heavily traveled; the property abutting the west side of Lindbergh in Creve Coeur and the property abutting the north side of Clayton Road in Clayton are zoned and used as commercial; there is a substantial difference in the value of both the Huttig property and the Tealin property depending on whether the property is zoned commercial or residential, but the points of differences between the two are more significant.

The overall picture presented by the facts of the instant case is a situation where the east side of Lindbergh in Ladue has no commercial development except for the three exceptions noted above; Ladue has consistently maintained residential zoning throughout its western boundary on Lindbergh (with the noted three exceptions), and the property is being used within the residential zoning restrictions. In short, this case presents a situation where Tealin wants to use this singular lot for a purpose contrary to the uses being made of virtually all of the property abutting on Lindbergh in Ladue, whereas Huttig desired to use his property on Clayton Road in Richmond Heights in conformity with the use being made of all of the other property fronting on Clayton from Hanley to west of Brent-wood.

In Huttig, the court found that “. considering the regional development as well as the immediately adjoining property to the west in Richmond Heights, we find that the nature of this tract is basically commercial.” 372 S.W.2d at 840.

In the instant case, although the west side of Lindbergh in Creve Coeur has been zoned and developed into strip commercial, the opposite is clearly evident with respect to the east side of Lindbergh in Ladue, where, with the three exceptions noted, the development and use of property has been residential throughout Ladue’s nearly three-mile-western boundary on Lindbergh.

This court finds the nature of the tract of land lying in Ladue abutting on Lindbergh, including Tealin’s lot, is basically residential and the refusal on the part of Ladue to rezone Tealin’s singular lot to commercial was not arbitrary; that the residential zoning classification as it applies to this area in Ladue generally, and as to Tealin’s lot in particular, is not an unreasonable exercise of the zoning power granted to municipalities by section 89.020, RSMo 1969.

The judgment of the circuit court is affirmed.

All of the Judges concur.

      . Exhibit B is color coded to the land use. Letters have been substituted for colors as it is not feasible to reproduce color here. The location of the city of Creve Coeur, the location of Tealwood subdivision, the location of commercial zoning in Creve Coeur on the west side of Lindbergh, and the general location of the Monsanto facility have been added in accordance with the evidence.

      . See Huttig v. City of Richmond Heights, 37 S.W.2d 833 (Mo.1963), for more detailed facts.


source: Caselaw Access Project

author: FINCH, Presiding Judge.

license: Public Domain

text:
    Darwin VALTER, Appellant-Respondent, v. ORCHARD FARM SCHOOL DISTRICT, a Corporate Body, et al., Respondents-Appellants.
    Nos. 59544, 59125.
    Supreme Court of Missouri, Division No. 2.
    Sept. 13, 1976.
    Motion for Rehearing or Transfer to Banc Denied Oct. 12, 1976.

      Robert C. Jones, Clayton, for appellant-respondent.
    John L. MeMullin, St. Louis, for respondents-appellants.
   FINCH, Presiding Judge.

The cross appeals in this case involve an action wherein plaintiff, a teacher, sought reinstatement, back pay and damages following his discharge by defendant school district. Count I thereof asked that plaintiff be declared to be a tenured teacher and that as such he be reinstated with back pay. In the alternative, Count II sought a determination that even if plaintiff was not a tenured teacher, his discharge was accomplished through a denial of due process. It asked for reinstatement and back pay plus damages. The trial court found for defendant on Count I and plaintiff has appealed therefrom. On Count II the court held that by the midterm discharge plaintiff was denied due process of law. He was awarded a judgment for salary for the remainder of the school year but denied reinstatement. Both plaintiff and defendant appealed from that judgment.

Jurisdiction in this court is asserted on the basis that the case involves construction of the due process clauses of the state and federal constitutions (Art. I, § 10, Mo. Const, and the 14th amendment to the U.S. Const.) as they relate to a midterm dismissal of a nontenured teacher under the provisions of § 168.126, a question not previously decided in this state. We conclude that we do have jurisdiction on that basis. We affirm the judgment on Count I but reverse on Count II.

Plaintiff was employed by the Orchard Farm School District as a social studies teacher on October 13, 1969, effective October 15, 1969, for the remaining 165 days of the 1969-70 school year. Thereafter, his contract was renewed each spring for the school years 1970-71, 1971-72, and 1972-73. He taught as a full time teacher during each of those years.

On April 3, 1973, the school board voted on whether to reemploy both tenured and nontenured teachers for the 1973-74 school year. A motion not to reemploy plaintiff, classified as a nontenured teacher, was adopted. The teachers of the district then went on strike because the board had failed to reemploy plaintiff and two other nontenured teachers, Mrs. Schimzel and Mrs. Blair. The CTA (the teachers association) demanded reemployment of these three teachers as a condition for ending the strike. A week or so later, the school board authorized contracts for the three teachers for 1973-74 and the strike ended.

As a part of its decision to renew the contracts for those three teachers, the board directed the school superintendent to send to each teacher a so-called 90 day letter of inefficiency. The president of CTA appeared before the board and requested that delivery of these letters be postponed until the start of school in the fall rather than being sent immediately. The board acquiesced in that request and the 90 day letter to Valter was not sent by the superintendent until August 31, 1973. It listed deficiencies as follows:

“1. Prompt attendance
“2. Effective use of teaching methods
a. Develop and follow lesson plans
b. Develop and define behavior objectives
“3. Develop better classroom control”

On receipt of the 90 day letter, Valter wrote to Superintendent Griffin asking for more specific information as to the deficiencies listed in the August 31 letter. On September 10, Superintendent Griffin replied that the August 31 letter was self-explanatory.

It was customary for teachers to be evaluated twice a year by the school principal. Pursuant to that practice, John Glore, who had replaced Finnel as principal of the school where Valter was teaching, promptly commenced observance and evaluation of Valter. On September 18, 1973, he gave Valter a two page memorandum covering his observation during the week of September 10 through 14, including a conference with Valter on the latter date. He reviewed what was done in an eighth grade class on each of the five days and stated that he had two very strong concerns about Valter’s teaching. In the first place he stated that the lesson on the various days was not related to the lesson on other days and that he couldn’t determine Mr. Valter’s method of teaching American history from those five lessons. Secondly, he pointed out that Mr. Valter’s system seemed to be a simple worksheet coding routine which was busy work and did not involve much initiative or thinking on the part of the student. Students spent most of their time filling out or “coding” a printed sheet containing questions concerning Time magazine, the textbook or other materials. He requested Mr. Valter to vary his teaching techniques and to rely less heavily on the coding system and on such materials as Time.

Observance of Valter by Glore continued during the fall and on November 20, 1973, he made his written evaluation report to the superintendent. Two of the nine instructional competence criteria listed on the evaluation report form were rated as ones in which he needed improvement and five were rated as unsatisfactory. Of seven criteria for professional attitudes and characteristics, two were listed as requiring improvement and five as unsatisfactory.

A copy of the Glore evaluation was furnished to Valter who appealed therefrom as established procedure permitted. Upon receipt of that appeal the superintendent designated as appeal officer a Mr. Doyle, director of special services, who was in charge of curriculum and instruction. Doyle visited Valter’s classroom on November 26, 27 and 28, 1973. He then made a written report to the superintendent, with a copy furnished to Mr. Valter. He did not undertake therein to review the criteria items relative to professional attitudes and characteristics, but with reference to instructional competence reported that Valter had continued to use the coding system, with worksheets as his major instructional method in spite of the principal’s directive to teach a comprehensive survey course in American history, and to rely less on the use of Time magazine and coding sheets. He found no apparent sequence to the topics considered in class. He also found that the evidence supported the principal’s criticism of Valter with reference to measuring and grading student progress.

On November 29, 1973, the superintendent wrote Mr. Valter that his 90 day probationary period had ended and the board would not decide whether his employment would continue or be terminated. He advised that if Valter desired an audience with the board, it would be scheduled for the evening of December 10, 1973.

In response Valter wrote on December 3, 1973, complaining that the letter did not contain a statement of charges, did not indicate what recommendation the superintendent would make to the board and did not spell out the procedure to be followed. He then itemized 13 procedures which he would expect to be followed and advised that he would object to any hearing not conducted in accordance therewith.

The superintendent replied on December 6, 1973, stating that Missouri law did not require a hearing but the board was giving Valter the opportunity therefor if he so desired. It rejected some of the conditions and procedures listed in Valter’s letter of December 3 but acquiesced in some, such as the right to be represented by counsel, to offer evidence and to cross-examine. It stated that a transcript would not be furnished but that Valter could record the hearing at his own expense if he so desired.

The hearing was held on the evening of December 10, 1973. Valter testified on his own behalf and Paul Barr, CTA president, and Tom King, a teacher, made statements on his behalf. Glore and Doyle, then testified on behalf of the school district. On the basis of findings during his evaluation Glore recommended that Valter’s employment be terminated. The board postponed a decision until its meeting on December 17, 1973, at which time it voted unanimously to terminate Valter’s employment as of December 18, 1973. The motion stated that termination was “for the reason that his work as a teacher has been unsatisfactory in accordance with his evaluations by Mr. John Glore and Mr. Larry Doyle.” Pursuant to that action, Valter was notified by telegram and by letter that his employment was terminated.

The first issue for determination is whether Valter was a permanent (tenured) teacher or whether, as the trial court found, he was a probationary teacher. Sec. 168.-104 defines a permanent teacher as one “who has been employed * * * as a teacher in the same school district for five successive years and who has continued or who thereafter continues to be employed as a full-time teacher by the school district; * * * It defines a probationary teacher as one “who has been employed full time in the same school district for five successive years or less”, with the proviso that the board of education shall waive one year of the probationary period if the probationary teacher has been employed in any other school system as a full time teacher for two years or more. Valter’s prior employment in other schools qualified him for this credit of one year, with the result that we must determine whether he was employed by the Orchard Farm School District for four successive years and was thereafter continued as a full time teacher.

Valter began his employment with Orchard Farm on October 15, 1969, and worked for the remainder of the school year. Thereafter, he served full time during the school years 1970-71, 1971-72 and 1972-73. He then was reemployed for the year 1973-74. Does that constitute full time employment for four years with continued employment for a fifth year? This question necessarily involves a determination of the meaning of the term “year” as used in § 168.104(4) and (5) and whether his employment during the 1969-70 school year qualifies as a year of employment.

This precise question was at issue in Hirbe v. Hazelwood School District, 532 S.W.2d 848 (Mo.App.1975). In that case the teacher first was employed in December 1968 to teach the remainder of the school year ending June 30, 1969. If that period constituted a year within the meaning of § 168.104(4), the plaintiff in that case acquired permanent teacher status when he was reemployed in 1972, but if the seven month contract did not qualify as a year, then he did not complete his required four years (he had served two years elsewhere) until June 30, 1973, and was not a tenured teacher. After considering various cases, including some from other states, and certain statutes including § 160.041, the court concluded that “year” as used in the Teacher Tenure Act had reference to a school year commencing July 1 and ending the following June 30 and that a contract for part of such year would not qualify as one of the required years under the provisions of § 168.104(4).

We agree with this holding in Hirbe. His employment for part of the 1969-70 school year did not qualify as a year of employment as a probationary teacher. The first year of such employment that qualifies was the year 1970-71. Accordingly, we hold that Valter is not a permanent or tenured teacher and we affirm the decision of the trial court as to Count I. In so deciding, we have considered the other out-of-state cases cited and relied on by plaintiff. They do not persuade us that the interpretation of § 168.104(4) in Hirbe is incorrect.

The second question for resolution is whether the midterm dismissal of Valter violated any due process rights belonging to plaintiff.

He first claims that he did not receive the notice required by § 168.126(2) which governs termination of employment of a probationary teacher. It provides in pertinent part as follows:

“If in the opinion of the board of education any probationary teacher has been doing unsatisfactory work, the board of education through its authorized administrative representative, shall provide the teacher with a written statement definitely setting forth his alleged incompetency and specifying the nature thereof, in order to furnish the teacher an opportunity to correct his fault and overcome his incompetency. If improvement satisfactory to the board of education has not been made within ninety days of the receipt of the notification, the board of education may terminate the employment of the probationary teacher immediately or at the end of the school year.”

As previously noted, the superintendent’s letter of August 31, 1973, listed asserted areas of deficiency as required by § 168.-126(2). Valter argues that by December 10, 1973, the date of the hearing, the items listed in the August 31, 1973, letter “had been largely taken care of” and that “things testified to at the hearing were not things that were on the 90 day letter of August 31, 1973”. On that basis he says that he did not receive the written statement required by § 168.126(2).

We disagree. Item 2 in the August 31 letter specified a failure to utilize effective teaching methods. That was what the September 18, 1973, memorandum from Glore to Valter, Glore’s subsequent November 20, 1973, evaluation report and Doyle’s November 28, 1973, appeal evaluation report were all about. They discussed Valter’s almost complete utilization of his coding system, his overemphasis on using Time magazine and other such materials instead of the American history text (“a potpourri of topics”), the absence of correlation between classes from one day to the next, the lack of class discussion between teacher and students, the need to establish and follow a guide in the 8th grade social studies class (“too much time away from the assigned course of study”) and unsatisfactory measurement of student progress. These all relate a lack of effective teaching methods, an absence of good lesson plans and a failure to develop objectives. At the hearing on December 10, 1973, it was these same things that Glore and Doyle stressed in their oral statements. They were the things upon which the board relied in terminating Valter’s employment. We conclude and hold that the August 31 letter did refer to the teaching deficiencies for which Val-ter was terminated. It was adequate notice to Valter.

The next issue presented is whether there was a denial of constitutionally required procedural due process in the midyear termination of Valter’s contract for the 1973-74 school year and, if there was, the extent of relief to which he is entitled.

It is Valter’s position that due process requires notice and a hearing as a condition to midterm dismissal of a probationary teacher. He cites Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) as authority for that proposition. Actually, Roth involved a university teacher who was informed that he would not be reemployed for the following year, not a teacher who was terminated during his contract of employment. It held that the teacher had been employed for a period ending June 30 and that the contract conferred no right on the teacher to have his contract extended if insufficient cause for termination existed. Hence, he was not entitled to procedural due process as part of the decision not to reemploy. In so ruling the U. S. Supreme Court stated at 576, 92 S.Ct. at 2708,

“The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests — property interests — may take many forms.”

The court then proceeded to give examples of property interests safeguarded by procedural due process and included therein was the following:

“ * * * Similarly, in the area of public employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, and college professors and staff members dismissed during the terms of their contracts, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, have interests in continued employment that are safeguarded by due process. * * * ” (Emphasis added.)

The foregoing dicta expressed the view that when a teacher is discharged during a contract term, procedural due process is required. In Cooley v. Board of Education of Forrest City School District, 453 F.2d 282 (8th Cir. 1972), the court dealt with such a situation wherein a teacher was summarily discharged during the school year without notice or a hearing. In holding that the discharge was constitutionally invalid, the court discussed the need for procedural due process, saying at 286:

“ * * * We think, contrarily, that as a matter of procedural Due Process the interest of a public school teacher in his continued employment until the natural expiration of the academic years is, in the absence of a countervailing state interest of paramount significance, sufficiently fundamental to prohibit his mid-term discharge without an explication of the reasons which underlie termination and the opportunity meaningfully to be heard with regard thereto. * * *”

This view was reiterated in Ahern v. Board of Education of School District of Grand Island, 456 F.2d 399 (8th Cir. 1972), wherein the court said at 402:

“We reiterate at the outset the recent holding of this court, in Cooley v. Board of Education of Forrest City School District, 453 F.2d 282 (8th Cir. 1972), that, in the absence of a countervailing state interest of overriding significance, a school teacher dismissed for cause during the course of a school year is entitled constitutionally to (1) notice of the reason for dismissal and (2) a reasonable opportunity for a hearing at which he or she is able to give testimony and to confront and question adverse witnesses. This is so because:
a mid-year discharge increases the economic hardship and renders even greater the likelihood that subsequent employment opportunities will be significantly circumscribed. Cooley, supra, 453 F.2d at 286.”

Mr. Valter was discharged during the 1973-74 school year for which he had been employed. Under the foregoing eases, he was entitled to procedural due process in that determination. Whether what occurred was sufficient to provide due process is an issue we must resolve.

As previously noted, the first requirement of procedural due process is that adequate notice be given. We have held that the 90 day letter of August 31, 1973, supplemented by Glore’s September 18, 1973, memo to Valter, the evaluation report dated November 20, 1973, and Doyle’s appeal report of November 28, 1973, were ample to advise Valter of the deficiencies for which he might be terminated and, hence, the issues to which he would have to respond.

The second requirement of procedural due process is an opportunity to be heard. In Ahern v. Board of Education of School District of Grand Island, supra, the court discussed the need for a meaningful opportunity to be heard and held that plaintiff therein had had such an opportunity. In so holding, the court stated, 456 F.2d at 403:

« * * * though, as Miss Ahern has observed, she might have been notified with greater precision of the basis for her suspension and dismissal, and the time between the notice and the hearing might have been greater, and the school board might have detailed this decision in a formal writing, none of these ideal conditions are prerequisites to' a finding that a hearing has been granted which comports with accepted notions of procedural due process. A fundamental requirement of due process is the opportunity to be heard, ‘at a meaningful time and in a meaningful manner,’ Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). * * * ”

Subsequently, on the same page, the court went on to say:'

“We have no doubt that the hearing afforded Miss Ahern by the Grand Island School Board was entirely adequate to insure her constitutional right to procedural fairness. She clearly understood that the basis of both her suspension and her dismissal was insubordination by reason of her failure to comply with Dr. Miller’s instructions regarding the restoration of order and proper curriculum in her classes. The superintendent of schools notified her in advance of the proposed board of education hearing. She was represented by able counsel at the hearing, was permitted to testify, and her counsel was permitted to cross-examine Dr. Miller. We have examined the entire record and are firmly convinced that Miss Ahern was accorded a meaningful hearing at a meaningful time.”

We conclude and hold that what occurred in this case satisfies the procedural due process requirements as spelled out in Roth, Cooley, and Ahern. Valter did have a meaningful opportunity to be heard with reference to the proposed termination of his employment. He was given the opportunity, which he utilized, of stating his position and presenting other witnesses on his behalf. He was assisted by his attorney who had the opportunity both to present Val-ter’s case and to cross-examine Glore and Doyle, the only two witnesses who testified before the board in support of the idea of terminating Valter’s employment. In preparation therefor, Valter and his counsel had available in advance of the hearing the written reports by Glore and Valter from which both testified. In the words of Cooley, Valter was provided “an explication of the reasons which underlie termination and the opportunity meaningfully to be heard with regard thereto”. 453 F.2d at 287. He was accorded procedural due process. It follows that he was not entitled to either back pay or reinstatement. Judgment should have been for the school district on Count II.

Judgment affirmed on Count I and reversed on Count II.

All of the Judges concur.

      . There was a Count III which alleged that the discharge of plaintiff immediately followed and was the result of publication of an article in the school paper wherein plaintiff was quoted as saying that there had been no significant improvement in the Orchard Farm School since he had been there and that such discharge violated plaintiffs constitutional right of free speech. The court found for defendant on this count at the end of plaintiff’s case and no appeal was taken therefrom.

      . All statutory references are to RSMo 1969 unless stated otherwise.

      . Such letters list asserted deficiencies in the performance of the teacher. They conform to the provisions of § 168.126(2), giving 90 days in which to improve and indicating that dismissal or nonrenewal of the teacher’s contract may follow insufficient improvement. Valter previously had received a 90 day letter dated January 12, 1973, from the then principal, Mr. Fin-nel, following an evaluation during the fall in which it was noted that he needed improvement in the use of effective teaching methods. An evaluation by Finnel during the spring of 1973 did not list any deficiencies.

      . Provides that a school year commences on July 1 and ends on June 30 following.

      . Application to transfer pursuant to Rule 83.-03 V.A.M.R. was made in Hirbe but it was denied by this court. Denial of such an application does not mean that this court approves and in effect affirms the decision of the court of appeals. It means only that the court did not find reason to transfer that case. However, as we now indicate, we do agree with the interpretation of § 168.104(4) adopted in Hirbe.


author: HOLMAN, Judge. SEILER, Chief Justice

text:
    Glenn VALENTINE, (Movant) Appellant, v. STATE of Missouri, Respondent.
    No. 59570.
    Supreme Court of Missouri, en banc.
    Oct. 12, 1976.
    Graham W. LaBeaume, Huck, Hasten & LaBeaume, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Paul R. Otto, Preston Dean, Asst. Attys. Gen., Jefferson City, for respondent.
   HOLMAN, Judge.

In June, 1968, Glenn Valentine was indicted on a charge of first degree murder and two charges of first degree robbery with a dangerous and deadly weapon. He made no request that bail be fixed and hence remained in jail until he was sentenced on January 13, 1969. On that date he entered pleas of guilty to second degree murder and the two robbery charges. The court accepted the recommendation of the State that he be sentenced to 12 years imprisonment on each charge, the sentences to run concurrently. Immediately thereafter the following occurred:

MR. WENDT: Your Honor, the defendant will respectfully request that his jail time be allowed.
THE COURT: In view of the seriousness of these three matters, the jail time will be denied. So ordered.

Valentine filed a pro se motion to vacate the judgments under Rule 27.26 in September, 1970, assigning four grounds therefor. Later counsel was appointed for movant and an amended motion was filed which abandoned the original grounds and alleged only that the failure to allow credit for time spent in jail because he was financially unable to make bail violated the equal protection clause of the U.S. Constitution. He sought allowance of such credit.

The trial court overruled the amended motion. Movant appealed to the Court of Appeals, St. Louis District. That court adopted an opinion affirming the judgment. However, deeming its opinion to be in conflict with the opinion of the Court of Appeals, Springfield District, in the case of Shepherd v. State, Mo.App., 529 S.W.2d 943 (1975) the case was transferred to this court for reexamination of the existing law. We will determine the case here the same as on original appeal. Art. V, Sec. 10, Mo.Const., V.A.M.S.

The allowance of jail time is governed by statute. Section 546.615, RSMo 1959, in effect at the time movant was sentenced read as follows: “When a person has been convicted of a criminal offense in this state . The time spent by him in prison or jail prior to his conviction and the date on which sentence is pronounced may, in the discretion of the judge pronouncing sentence, be calculated as a part of the term of the sentence imposed upon him.” That section was amended in 1971 to provide that, “A person convicted of a felony in this state shall receive as credit toward service of the sentence imposed all time spent by him in prison or jail both awaiting trial and pending transfer to the department of corrections.” The amended section would not have retroactive effect and therefore has no application to the question before us. State v. Whiteaker, 499 S.W.2d 412 (Mo.1973). It is obvious that if the original statute is taken literally the trial court had the discretionary duty to determine whether jail time should be allowed and we see no indication that the court abused its discretion in denying the request.

As stated, however, movant contends that the discretionary provision of the statute violates the equal protection clause of the Fourteenth Amendment in that it discriminates against the poor who cannot raise bond. This point was presented to this court and ruled adversely to the defendant in the case of State v. Crockrell, 470 S.W.2d 507 (Mo.1971). This court reaffirmed the Crockrell ruling in Gillis v. Swenson, 495 S.W.2d 658[3] (Mo.1973). Prior to the decision in Shepherd, supra, all three districts of the court of appeals had adopted opinions that followed the Crockrell ruling. See Meeks v. State, 512 S.W.2d 215 (Mo.App. Springfield, 1974), King v. State, 510 S.W.2d 747 (Mo.App. St. Louis, 1974) and Neighbors v. State, 515 S.W.2d 792 (Mo. App. Kansas City, 1974).

In 1975 the habeas corpus case of King v. Wyrick (8th Cir.) 516 F.2d 321, was decided.. Therein, although defendant was held on a first degree murder charge bail was fixed at $8,000 which defendant was unable to give because of indigency. When he pleaded guilty to murder second, the trial court refused to allow credit for jail time on the 12 year sentence. The federal appeals court held that the denial of jail time credit deprived King of equal protection and ordered that the credit be allowed.

Obviously, this court does not agree with the King decision. In addition to other reasons that have been expressed we have the view that the trial judge in fixing the length of sentence has often considered his mental, though unannounced, decision not to allow jail credit. In the instant case we think it likely that the judge considered such in his decision to accept the very lenient recommendation of the State of a 12 year sentence for what was, in fact, three capital offenses. The Springfield District of the Court of Appeals, however, evidently considered that it should follow the King decision and it accordingly did so, without discussion, in Shepherd, supra. The court in Shepherd was not required to follow King. See, Kraus v. Board of Education of City of Jennings, 492 S.W.2d 783[2] (Mo. 1973) and cases cited therein. It was required to follow the controlling decisions of this court. Art. V, Sec. 2, Mo.Const.

We base our decision in the case at bar, however, upon a different ground. Movant was charged with first degree murder. At the time his plea was entered the assistant circuit attorney stated facts which showed that movant was guilty of felony murder, which, as a matter of law, was then a capital offense. Movant agreed that the facts stated were true. Sec. 20, Art. 1, Mo.Const., provides, “That all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.” If movant had desired bail he should have filed an application and a hearing would have been held to determine whether the “evident proof” showed guilt of a capital offense. No such hearing was held but since movant later admitted his guilt of felony murder it is reasonable to assume that the State could have presented proof thereof. In that situation movant was not entitled to bail regardless of his financial resources. It follows that there could not have been any violation of the equal protection clause in this case and that cases such as King and Shepherd would have no application to the factual situation before us.

The judgment is affirmed.

MORGAN, HENLEY, FINCH and DON-NELLY, JJ., concur.

SEILER, C. J., dissents in separate dissenting opinion filed.

BARDGETT, J., dissents and concurs in separate dissenting opinion of SEILER, C. J.

SEILER, Chief Justice

(dissenting).

I respectfully dissent. I would reverse and remand with directions to allow credit for the 227 days of jail time served by movant prior to sentencing. I would do away with “dead time”, which is what I think the legislature intended.

The principal opinion states that the amendment in 1971 to § 546.615, RSMo 1959 “would not have retroactive effect and therefore has no application to the question before us”, citing State v. Whiteaker, 499 S.W.2d 412 (Mo.1973). I do not agree that such is the holding of the Whiteaker case. The question of whether the amended statute would apply to jail time served with respect to a conviction which was final prior to the effective date of the amendment was not before the court in Whiteaker, although it is before us in the present case. I, for one, would not have concurred in the White-aker opinion had it announced any such rule. In Whiteaker the question was whether a defendant whose case was stiil pending on appeal at the time the amendment became effective was entitled to jail time against his sentence. The court held yes, he was. There was no need to, and the court did not, decide the question presently before us.

The majority opinion, respectfully submitted, misconstrues the application of the present statute and its predecessor. The 1959 enactment read:

“1. When a person has been convicted of a criminal offense in this state
(2) The time spent by him in prison or jail prior to his conviction and the date on which sentence is pronounced may, in the discretion of the judge pronouncing sentence, be calculated as a part of the term of the sentence imposed upon him.”

This statute required action by the judge if jail time were to be allowed. Necessarily, therefore, it could apply only to those persons who were convicted and sentenced after its effective date. No one else could be in the position of having sentence pronounced on which the judge could allow jail time.

The present statute, however, provides:

“1. A person convicted of a felony in this state shall receive as credit toward service of the sentence imposed all time spent by him in prison or jail both awaiting trial and pending transfer to the department of corrections.”

The amended statute does not require action by the judge. It grants credit administratively. All that is required is that the division of corrections mark the prison records accordingly. Who is to receive credit under the terms of this statute? A person convicted of a felony in this state. Does movant fall within this class? Obviously he does and he is therefore entitled to credit for the 227 days he spent in jail awaiting trial and prior to sentence. This, in my opinion, should dispose of this case. I think the wording and meaning of the amended statute is quite clear, but if there should be any doubt, the law is unquestioned that penal or criminal statutes are to be liberally construed as to those portions which are in favor of defendants — that is, for their ease and exemption. Anthony v. Kaiser, 350 Mo. 748, 169 S.W.2d 47, 48 (banc 1943).

As seen from the foregoing, it is not necessary for movant to establish a violation of the equal protection clause in order to obtain relief under the facts of this case. However, I am unable to agree with the majority opinion that it would not be a breach of equal protection if the amended statute were held not applicable to movant, or that the equal protection question can be avoided on the basis that movant would not have been admitted to bail regardless of his financial resources. It is nothing but speculation to conclude that had there been a bail hearing the evidence would have shown that movant’s guilt was evident or the presumption thereof great. We do not know what the evidence would have been at such a hearing. One thing of which we can be sure, however, is that defendant would not have admitted guilt. Yet it is on the fact that movant at the time he entered his guilty plea in effect admitted his guilt of felony murder that the majority opinion says it is reasonable to assume the state could have presented proof thereof at a bail hearing. Without the defendant’s admission of guilt the state’s case might have been sadly lacking. If the state had such a strong case, the kind which the cases say the evidence must show in order to deny bail, why was the prosecution willing to reduce the first degree murder charge to second degree and recommend twelve year sentences, to run concurrently, in exchange for pleas of guilty to second degree murder and two armed robberies with a dangerous and deadly weapon? Again, we can only speculate, but the point is that simply because defendant admitted guilt at the guilty plea and sentencing proceedings does not mean that this case can be approached with the certainty that defendant would not have been admitted to bail had there been a hearing under the constitutional mandate, Sec. 20, Art. I, Mo.Const., that bail follows as a matter of course unless the proof is evident or the presumption great. This being so, we must face the constitutional questions which are involved in denying jail time credit to a defendant who is indigent, but who would not have been serving jail time had he been financially able to make bail.

The majority opinion relies on this regard upon State v. Crockrell, 470 S.W.2d 507 (Mo.1971), a reliance which, I submit, is misplaced. In the first place, part of the reasoning in that case, 470 S.W.2d 1. c. 509, was that “The matter of whether credit for jail time shall be given applies equally to all persons who are before the court for sentencing. It is discretionary with the sentencing court, and is not connected in any way with the ability to make bond.” It is true the statute applies equally to all persons who are before the court for sentencing, but the reasoning of the court misses the point that the only ones who are seeking the court’s discretion for allowance of jail time are those who were unable to make bond. The defendant of means has no need to seek the court’s discretion; he was not in jail.

In the second place, the two cases primarily relied upon in Crockrell have either been repudiated or represent a shrinking minority of thought. One case was United States ex rel. Watson v. Commonwealth & Common Pleas Ct. of Pa., 260 F.Supp. 474 (E.D. Pa.1966). That case involved a prisoner who was attempting to have the sixteen and a half years he served on an illegal sentence credited against other sentences for crimes he committed while on parole. The case did not involve jail time prior to sentence at all. The court expressed the view, however, that “even in those cases where a sentence is vacated and the relator is re-tried for the very same offense, there is no constitutional requirement of credit for the time already served.” Id. at 475. This view, of course, is no longer the law under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and the foregoing federal district court decision is not of much value today.

The second case relied upon by Crockrell is Gremillion v. Henderson, 425 F.2d 1293 (5th Cir. 1970). Gremillion involved a habe-as corpus claim by a Louisiana state prisoner for allowance of jail time prior to sentencing. The precise basis on which the prisoner was making his claim does not appear. In a three paragraph per curiam opinion without substantial discussion, the court declared “. . . there is no federal constitutional right to credit for time served prior to sentence.” There is no discussion in the opinion about unequal treatment. Id. at 1294. In fact, the opinion notes that the Louisiana statute on presen-tenee jail time did not “impose an arbitrary classification.” Id. at n. 4. For a court to make the general statement that there is no constitutional right to jail time, while true as compared to specific rights which are guaranteed by the constitution such as right to counsel or right to jury trial, does not mean that an equal protection violation cannot grow out of the mishandling of jail time. In the case before us it is evident that the denial of jail time credit depends upon the defendant’s means, and as such, it discriminates against the poor. The proof that the Gremillion court did not rule on the issue of invidious wealth discrimination as to jail time credit, is found in the later decision of the same court in Cobb v. Bailey, 469 F.2d 1068, 1070 (5th Cir. 1972) in which, while denying an Alabama prisoner credit for pre-conviction jail time, the court pointed out that had the prisoner been charged with a bailable offense and ¿lleged a discriminatory denial of the opportunity to make bail after it was set, the conclusion that the court was bound by Gremillion would not follow.

This makes it plain that the broad language of Gremillion is no longer authority for the proposition that the discretionary provision of our statute on jail time is immune from constitutional attack on unequal protection grounds.

I think we should reconsider and overrule the Crockrell case, not only for the reasons set forth above, but also because of the developing line of authority elsewhere that the denial of credit for time spent in custody prior to sentencing due to indigency violates the equal protection clause of the Fourteenth Amendment. In Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), the trial court imposed a sentence of both imprisonment and a fine. When the defendant was unable to pay the fine, that portion of the sentence was converted to imprisonment. Consequently, the defendant was to serve a term in excess of the maximum statutory sentence. The Supreme Court held that the equal protection clause of the Fourteenth Amendment prohibits the imprisonment of an indigent longer than the maximum term authorized by statute because he cannot pay the fine portion of his sentence. The Supreme Court expanded this concept in Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) in which it held that the equal protection clause of the Fourteenth Amendment prohibits incarceration solely due to indigence. We agreed in Hendrix v. Lark, 482 S.W.2d 427 (Mo. banc 1972).

Likewise, the ABA Standards Relating to Sentencing Alternatives and Procedures comport with the view granting credit, “(a) Credit against the maximum term and any minimum term should be given to a defendant for all time spent in custody .as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. This should specifically include credit for time spent in custody prior to trial, during trial, pending sentence, pending the resolution of an appeal, and prior to arrival at the institution to which the defendant has been committed.” Standard 3.6 (Approved Draft, 1968).

While I agree that this court is not bound by general declarations of law made by lower federal courts, as indicative of the general trend is the persuasive reasoning found in King v. Wyrick, 516 F.2d 321, 323-24 (8th Cir. 1975), where the court was dealing with a jail time credit problem similar to ours, and said (footnote omitted):

“Since Wiliiams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), many federal courts have come to recognize that failure to grant credit on an indigent prisoner’s sentence for time spent in jail before sentencing for failure to meet bail due to indigency has constitutional implications. Several courts have held that it is a denial of equal protection not to grant an indigent prisoner credit for jail time served after he has been unable to meet bail due to indigency when his sentence plus the previous jail time adds up to a total period of incarceration longer than the maximum allowable term prescribed by law for the offense committed. See, e. g., Parker v. Estelle, 498 F.2d 625 (5th Cir. 1974); Hook v. State of Arizona, 496 F.2d 1172 (9th Cir. 1974); Hill v. Wainwright, 465 F.2d 414 (5th Cir. 1972); Hart v. Henderson, 449 F.2d 183 (5th Cir. 1971). See also Reanier v. Smith, 83 Wash.2d 342, 517 P.2d 949 (1974) (credit on statutory maximum and minimum sentences); In re Young, 32 Cal.App.3d 68, 107 Cal.Rptr. 915 (1973) (credit on statutory minimum sentence). This result follows from the holding in Williams v. Illinois, supra, 399 U.S. at 244, 90 S.Ct. at 2023, that ‘the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status.’ .

“It is obvious, however, that equal protection considerations obtain as well in the case of an indigent prisoner who is denied jail time credit on a prison term less than the allowable maximum prescribed by stat-utev He still must serve a longer term in connection with the offense than would a wealthier prisoner who is sentenced to the same term but who is able to meet bail to avoid incarceration before trial and sentencing. See generally, Schornhorst, Pre-sentence Confinement and the Constitution: The Burial of Dead Time, 23 Hastings L.J. 1041, 1056 et seq. (1972); Note, Sentence Crediting for the State Criminal Defendant — A Constitutional Requirement, 34 Ohio St.L.J. 586, 587-588 (1973); cf. Morris v. Schoonfield, 399 U.S. 508, 509, 90 S.Ct. 2232, 26 L.Ed.2d 773 (1970) (White, J., concurring). See also Williams v. Missouri Department of Corrections, 463 F.2d 993, 995 (8th Cir. 1972). Thus several district courts have resolved jail time credit cases on equal protection grounds without limiting the implications of the constitutional analysis to circumstances in which the total length of incarceration exceeds the maximum term allowed by law. See Mohr v. Jordan, 370 F.Supp. 1149 (D.Md.1974); White v. Gilligan, 351 F.Supp. 1012 (S.D.Ohio 1972) (3-judge court); Workman v. Cardwell, 338 F.Supp. 893 (N.D.Ohio), vacated in part as mooted, 471 F.2d 909 (6th Cir. 1972). See also Monsour v. Gray, 375 F.Supp. 786 (E.D. Wis.1973); Anglin v. State, 90 Nev. 287, 525 P.2d 34 (1974).”

While double jeopardy was not raised in our ease, it is inherent in the facts before us and this is an added reason why relief should be granted. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court required that a defendant be credited for his jail time spent waiting retrial and resen-tencing after the invalidation of his original conviction. This result obtains through the double jeopardy clause of the Fifth Amendment as applied to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In Pearce, supra, 395 U.S. at 717, 89 S.Ct. at 2076, the court reminds us that the double jeopardy clause “. protects against multiple punishments for the same offense”, citing Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 75 L.Ed. 354; United States v. Sacco, 2 Cir., 367 F.2d 368; United States v. Adams, 6 Cir., 362 F.2d 210; Kennedy v. United States, 9 Cir., 330 F.2d 26. The court went on to explain that “. . it is clear that this basic constitutional guarantee is violated when punishment already exacted for an offense is not fully ‘credited’ in imposing sentence upon a new conviction for the same offense.” North Carolina v. Pearce, supra, 395 U.S. at 718, 89 S.Ct. at 2077. Yet the underlying rationale of Pearce is not so narrow. “Though not so dramatically evident, the same principle obviously holds true whenever punishment already endured is not fully subtracted from any new sentence imposed.” Id. The analogy is clear. Movant has been subjected to multiple punishments, one upon arrest, the other upon conviction. See to the same effect, Wright v. Maryland Penitentiary, 429 F.2d 1101, 1104 (4th Cir. 1970); Durkin v. Davis, 390 F.Supp. 249, 254 (E.D.Va. 1975); Parker v. Bounds, 329 F.Supp. 1400, 1401 (E.D.N.C.1971); Culp v. Bounds, 325 F.Supp. 416, 419 (W.D.N.C.1971).

There is no rational basis on which to deny this movant credit for time served in jail. The state has a valid interest in requiring bail to insure the presence of the defendant at trial, but to refuse credit for jail time because of inability to make bail is unrelated to any legitimate purpose of the bail requirement. All it does is penalize the poor for being poor.

I would reverse and remand this case with directions to enter credit for the jail time prior to sentencing, on the basis that the amended statute so requires, without any need to reach the constitutional question. If the constitutional question is reached, I would reverse and remand with directions to enter credit for the jail time prior to sentencing, on the ground that not to do so would work an unconstitutional denial of equal protection and subject mov-ant to double jeopardy.

      . Reexamination of the briefs on file in the Whiteaker case confirms that the question of retroactivity of the amendment as to convictions which had become final was not briefed or argued.

      . In considering whether or not the accused is entitled to bail, it is not proper to consider the evidence from the standpoint of an appellate court. On the contrary, . . the proper test is whether the evidence before the judge on the hearing for bail tends strongly to show guilt of a capital offence . . .’’Ex parte Verdea, 291 Mo. 552, 237 S.W. 734, 737 (banc 1922). “[Bjefore a defendant should be committed without bail, ‘such facts must be shown as to raise a strong presumption of guilt of the crime charged.’ ” Ex parte Knight, 301 Mo. 63, 254 S.W. 1077, 1079 (banc 1923). “It is also to be kept in mind that the question here [referring to a proceeding to fix bail] is not whether the evidence presented would support a jury’s verdict of guilt of first degree murder. . The test in this proceeding is whether the evidence presented and under consideration on this hearing constitutes proof that is evident of guilt or murder in the first degree, or establishes facts and circumstances which make the presumption of such guilt strong.” In re Schultz, 302 Mo. 181, 257 S.W. 447, 448 (banc 1924). See, also, Williams v. Missouri Department of Corrections, 463 F.2d 993, 995 (8th Cir. 1972), where the court points out that under the Missouri constitutional provisions, the fact a defendant is charged with a capital crime does not necessarily mean he is not entitled to bail.


author: PER CURIAM.

text:
    In the Matter of The Honorable Jack DUNCAN, Judge, Respondent.
    No. 59539.
    Supreme Court of Missouri, En Banc.
    Oct. 12, 1976.
    Rehearing Denied Oct. 27, 1976.

      Raymond R. Roberts, Roberts & Roberts, Farmington, for Commission.
    Donald E. Lamb, Centerville, for respondent.
   PER CURIAM.

The respondent is the probate judge and ex officio magistrate of Iron county, Missouri. The Commission on Retirement, Removal and Discipline (commission), pursuant to Art. V, sec. 27, Mo.Const., and Rule 12 of the Supreme Court, found respondent to have violated the constitution and statutes of Missouri, Supreme Court rules, and the Code of Judicial Conduct, in six of the seven charges filed against him. The commission unanimously recommended under Rule 12.08 that respondent be removed from office. This case is on review before this court pursuant to Art. V, sec. 27, Mo. Const., and Supreme Court Rule 12.

We cannot discern from the transcript or briefs the exact times during which respondent was probate judge and ex officio magistrate of Iron county. However, it is clear that of the seven findings made by the commission, the acts referred to in the third, fourth, and fifth findings occurred in 1970 while respondent was probate judge and ex officio magistrate; that sometime thereafter, but not as a result thereof, respondent returned to the private practice of law for about ten months; that respondent again became probate judge and ex officio magistrate and was reelected in 1974 to the four-year term which he is presently serving. Findings one, two, six, and seven relate to incidents alleged to have occurred during his present term.

Respondent lives on College Street in Arcadia, Missouri, is married, has five children, and his home is across the street approximately one-hundred yards from Mrs. Neiderjohn’s home. On October 12, 1975, a Sunday, respondent’s wife was out of town. The respondent was at home with his children until about noon at which time he had to leave. When he returned home at approximately 4:00 p. m., his children informed him a fight had occurred between his youngest son and Mrs. Neiderjohn’s son. Furthermore, the children told respondent that Mrs. Neiderjohn had threatened to blow their brains out and she had bought a gun for that purpose which was in her house.

At the time respondent learned of the threats, Mrs. Neiderjohn and her son were at home. The respondent remained in his house until approximately 5:30 p. m. when he saw the Neiderjohns leave in their car. Respondent testified that he was very concerned that Mrs. Neiderjohn had a gun in her house, as he had heard four months before that she was shopping for one and he was now afraid she would shoot the children. With this in mind, he went across the street to the Neiderjohn home, kicked in the locked door, searched the house, ransacking drawers, but failed to find a gun. He did however find an axe handle and a length of pipe which he took but, according to his testimony, he dropped them on the front lawn and went home. He testified that subsequently he went back and picked them up and took them home. He then called the sheriff’s office and told them what he had done and requested that the sheriff stop Mrs. Neiderjohn and search her for a gun since he had not found one in her home.

There was substantial evidence that over a period of a couple of years Mrs. Neider-john had made threats of one kind or another to the respondent and others; that she constantly complained about how her son was treated by school authorities, by neighbors, and by other children. Although these complaints extended over a couple of years, there is no evidence that she ever carried out any of the threats.

The events described above resulted in the most serious charge brought against respondent and triggered the complaint to the commission. Respondent admits the facts found by the commission as to this charge are true.

The commission’s finding is as follows:

“1. On October 12, 1975, Respondent forcibly broke into and entered the residence of Mrs. Barbara Lewis Neiderjohn of Arcadia, Missouri, while Mrs. Neiderjohn was absent and while said residence was locked, by forcibly breaking the lock on the front door of said residence. The Respondent thereupon proceeded to enter the residence and to conduct a search of the Neid-erjohn residence, ransacking and disturbing the contents thereof. Both the entry into the residence and search thereof were conducted without a search warrant and under circumstances where no legal search warrant could have been obtained. The Respondent took from the residence a tool handle and a length of metal pipe. The Respondent thereupon left the Neiderjohn residence taking such items, leaving its contents in a disturbed condition, the front door in an unlocked condition, and the front door lock in a broken condition. Respondent thereupon notified the Iron County Sheriff’s Office of his conduct and directing such Sheriff’s Office that he wanted ‘the bitch’, referring to Mrs. Neiderjohn, stopped and searched.”

The commission’s conclusion of law as to the above finding is as follows:

“1. By breaking into and searching the Neiderjohn home Respondent violated Supreme Court Rule 2, Canon 2, and 3C, as amended, effective July 15, 1975, by his failure to comply with the law, by permitting his family relationships to influence his conduct and judgment, and by failing to disqualify himself from a matter in which he had a personal bias. In addition, this conduct, carried on without a search warrant, was in direct violation of Article I, Section 15, of the Missouri Constitution, the Fourth Amendment to the Constitution of the United States of America, and the following Missouri Statutes and Supreme Court Rules: Section 560.045 RSMo 1969 (burglary not first degree); Section 558.110 RSMo 1969 (oppression in office); Section 558.190 RSMo 1969 (seizing property without legal process or lawful authority); Rules 38.01 and 33.02 VAMR (search without a lawful warrant); and Senate Bill No. 366, effective August 13, 1974, of the unclassified laws of 1974 (search of a residence without a valid warrant).”

The respondent first claims that he was denied due process of law because the commission’s structure combines both prose-cutorial and adjudicatory functions in the same body. If this was actually the ease, then we would agree with respondent that such a proceeding would be unfair. A fair trial and a fair tribunal are essential to due process and the combination of prosecutor and judge in one body creates a high probability of unfairness. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). However the respondent has cited no authority or facts which would lead us to the conclusion that the procedure followed by the commission fell short of the level prescribed by the due process clause.

Contrary to the respondent’s assertion that the commission is both prosecutor and judge, we are of the opinion that they act as investigators and judges. Under Supreme Court Rule 12.08, the commission conducts an initial investigation to determine whether probable cause exists to believe the person under investigation is guilty of misconduct. If four members of the commission determine that probable cause exists, the commission holds a formal hearing. At the investigatory stage the respondent is given notice and a reasonable opportunity to present such matters as he may choose; at the formal hearing if probable cause is found an opportunity to present evidence and cross-examine witnesses is afforded. Rules 12.08 and 12.20. We are unable to conclude that this constitutes a prosecution as respondent contends even though the commission asks questions of the witnesses. Although an investigator is allowed to ask questions of witnesses, it does not necessarily make him a prosecutor. Using the respondent’s logic, we would have to conclude that every time a trial judge asked a witness a question to clarify a matter he would become a prosecutor.

The combination of the investigatory and adjudicatory functions does not violate the strictures of the due process clause. Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). Larkin involved the suspension of a doctor’s license by the state medical board and the U.S. Supreme Court held that the combination of these functions did not contain in themselves an unacceptable risk of bias. In McCartney v. Commission on Judicial Qualifications, 12 Cal.3d 512, 116 Cal.Rptr. 260, 267, 526 P.2d 268, 275, n. 7 (banc 1974), the Supreme Court of California reviewed a constitutional provision and hearing procedures similar to those in the instant case and rejected as without merit a claim that the combination of investigatory and adjudicatory functions constituted a denial of due process. Furthermore, we note that only this court can make the ultimate adjudication which removes a judge from office for misconduct, etc., or otherwise disciplines a judge. Art. V, sec. 27, subsec. 3, Mo. Const., as amended; Rule 12.08. And, where judicial review is afforded, as it is here, the fact that charges are initiated by the administrative agency which then tries the matter does not, of itself, constitute a denial of due process. See Rose v. State Board of Registration for Healing Arts, 397 S.W.2d 570, 574 (Mo.1965), and cases cited therein. The commission complied with the applicable rules of this court and those rules afforded respondent due process of law.

The respondent claims he is entitled to have the measure of the burden of proof be beyond a reasonable doubt rather than by a preponderance of the evidence. The present law in Missouri on retirement and removal of judges is patterned after the law in California (Cal.Const., VI, sec. 18). The Supreme Court of California has held the burden of proof in cases involving the removal of judges is to be measured by “clear and convincing evidence”. Spruance v. Commission on Judicial Qualifications, 13 Cal.3d 778, 119 Cal.Rptr. 841, 532 P.2d 1209 (banc 1975). The reason given for using this standard was that it was the same as that used in disciplinary proceedings for lawyers before the state bar. Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1 (banc 1973), cert. den. 417 U.S. 932, 94 S.Ct. 2643, 41 L.Ed.2d 235 (1974).

In Missouri, however, disciplinary proceedings for lawyers require the charges be sustained by a preponderance of the evidence and not beyond a reasonable doubt or by clear and convincing evidence. In re Warden, 347 Mo. 196, 146 S.W.2d 874 (1940); In re Mason, 203 S.W.2d 750 (Mo.App.1947). Using the logic of the California courts and realizing the similarity between the disciplining of lawyers and judges, we find that the amount of proof necessary to sustain a charge is the preponderance of the evidence.

As to the first finding and conclusion that it was improper for respondent to break into the Neiderjohn home and remove a piece of pipe and an axe handle, the respondent contends he was justified because (1) the action taken came within the privilege of self-defense and defense of family; (2) respondent by statute is a conservator of the peace; and (3) his action came within the exigent circumstances exception for warrantless searches. There is no question that respondent did break into the Neiderjohn home and remove the property mentioned above; he admits he did.

Respondent cites a number of cases dealing with the privilege of self-defense. All of these cases however deal with the privilege as it relates to self-defense against an aggressor who sought to attack a defendant and not with a privilege to break into someone’s home to protect against a possible attack in the future. Respondent cites no cases directly on this point and in our own research we have failed to find any. One thing however which all the cases on self-defense require is that to justify the use of self-defense the party must have a real or apparently real necessity, and the claimant must have done everything within his own power, consistent with his safety, to avert the necessity. State v. Young, 510 S.W.2d 732 (Mo.App.1974). In other words, even if the privilege of self-defense would apply in the instant case, and it does not, the respondent would have to show he had a reasonable apprehension of immediate death or serious bodily harm to himself or a member of his family from Mrs. Neider-john.

The evidence, though, does not substantiate such a reasonable apprehension. The respondent claims he had a reasonable fear because Mrs. Neiderjohn threatened the lives of his children, and she was a violent woman who made numerous threats and was known to have been pricing guns in a sporting goods store. On its face, this may appear to be quite serious but in light of all the facts we cannot conclude that respondent had a reasonable apprehension of harm from Mrs. Neiderjohn. The incident with respondent’s children occurred approximately five hours before he broke into the Neiderjohn home and by which time all the children were safe at home. As to the Neiderjohn woman’s violent character and threats, there is no question that she had in the past made numerous threats, but there is evidence suggesting that the threats were empty and vague, and people in the community did not take them seriously. And with respect to Mrs. Neider-john’s pricing of guns, the evidence shows that respondent knew she had not purchased one. We are of the opinion that the facts simply do not support a reasonable apprehension or fear of harm on the part of respondent to justify a claim of self-defense.

Respondent next contends he was justified in breaking into the Neiderjohn home because in his role as a conservator of the peace he would have been guilty of a misdemeanor had he not done so. The respondent is correct when he describes himself in his position of magistrate judge as being a conservator of the peace pursuant to section 542.020, RSMo 1969. He goes on to justify his actions on the basis of section 542.150, RSMo 1969, which places upon conservators of the peace the duty to disperse rioters, and section 543.060, RSMo 1969, which requires a magistrate to arrest any person who commits, threatens, or attempts “any affray or breach of the peace” in his presence. Furthermore, had he not acted as he did, he claims he would have been guilty of a misdemeanor under section 542.-250, RSMo 1969. The respondent’s contention is without merit because he does not come within the bounds of the statutes. He was neither involved in dispersing a riot nor was an “affray or breach of the peace” being committed, threatened, or attempted in his presence.

Respondent also contends he was justified in breaking into the Neiderjohn house to conduct a search for weapons without a warrant under the .exigent-circumstances doctrine. Respondent concedes that under the facts of this case he could not have obtained a search warrant under the applicable Missouri statutes. Section 542-271, RSMo Supp.1976, provides in part: “A warrant may be issued to search for and seize . . . [a]ny weapon, tool, device, or substance which has been used as means for committing a felony . . . ” No provision is made for weapons which might be used in the future for committing a felony. Respondent claims one of the requirements of the exigent-circumstances doctrine is that a search warrant was not available. It appears to be respondent’s reasoning that the absence of grounds upon which a search warrant could be obtained by which a search could have been conducted of the Neiderjohn home by police officers becomes the legal authority which authorizes the private person to break in and ransack a private home. We think that the simple exposure of this convoluted reasoning demonstrates its absurdity. We are also of the opinion that respondent fails to come within the bounds of the exigent-circumstances doctrine either as a private citizen or a magistrate judge because no exigent circumstances existed.

Respondent states that in Missouri war-rantless searches of dwelling houses are legal under circumstances where “(a) there is a reasonable cause to believe that death or serious harm to any person or to members of the public in general, or the destruction or removal of criminal evidence, will result without an immediate search, and (b) a search warrant is not obtainable or will take too long to get.” Even if we accepted the respondent’s statement of the law, which we don’t, he has not established that “exigent circumstances” existed under the rule as he states it. As stated above, we find no reasonable grounds to believe anyone was in danger from Mrs. Neiderjohn and, furthermore, there was no danger of the destruction of criminal evidence because no crime had been committed.

The Fourth Amendment is intended to protect the privacy of the individual from unreasonable searches and seizures. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Generally, the requirement that a police officer must obtain a warrant prior to conducting a search and seizure is meant to protect the individual’s privacy by assuring that searches and seizures are reasonable. There are, however, certain exigent circumstances under which a search and seizure may be conducted without a warrant. This though does not remove the requirement that the search and seizure must still be reasonable and it is the exigencies of the situation which makes the warrantless search reasonable. 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. In Hayden there was a possibility that more than one person or additional undiscovered weapons were in the house which posed a danger to the lives of the police or others. In the instant case the circumstances did not pose a danger to anyone; therefore, under the rationale of Hayden, it was not reasonable to enter the house without a warrant. In addition the court in Hayden stated, “There must, of course, be a, nexus — automatically provided in the case of fruits, instrumental-ities or contraband — between the item to be seized and criminal behavior.” 387 U.S. at 307, 87 S.Ct. 1642. In the instant case there had been no criminal behavior on the part of Mrs. Neiderjohn; therefore, no nexus existed.

In State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975), the court said a warrantless search of the house in question was justified because there was a possibility of evidence, i. e., drugs, being removed or destroyed. Once again, in the instant case, there had been no crime committed and therefore no evidence existed which might have been destroyed or removed. Furthermore, the respondent knew that no one was in the house who could have tampered with this hypothetical evidence. In Wiley the police were afraid that if they left the apartment to obtain a warrant some unknown individuals seen in the area might have entered the apartment and removed the evidence of the crime, i. e., drugs.

Finally, all of the cases cited by respondent suggesting that exigent circumstances were present involved the actual commission of a crime but in the instant case no crime had been committed. Furthermore, those cases concerned the question of whether evidence seized pursuant to the search was admissible in a criminal trial. In the instant case respondent seeks to justify his breaking and entering on the basis that he acted as a private person in fear of some future harm that Mrs. Neiderjohn might have done to his children. The “exigent circumstances” exception has no application to the acts of a private person. His conduct is not justifiable on any theory of self-defense or defense of his family. Were a court to accept respondent’s reasoning as justification for his conduct, the simple result would be that everyone’s home could be legally burglarized upon the subjective belief of another that the homeowner may cause him harm in the future.

Next the respondent argues he did not commit a burglary in the second degree because he lacked the requisite intent to keep the property. Section 560.045, RSMo 1969, makes no mention of the words “intent to keep” but instead only requires a person to have broken into a dwelling house with the “intent to commit a felony or [steal]”. Nowhere in the definition of stealing, section 560.156, RSMo 1969, is there a requirement that the person have an “intent to keep” the property. That section defines “steal” as “to appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining, using, transferring, concealing or retaining possession of his property.” In State v. Chambers, 524 S.W.2d 826, 829 (Mo. banc 1975), the court with reference to stealing made no mention of any intention to keep, but instead called it an “intentional taking of property of another without his consent and with intent to deprive the owner of the use thereof.”

In the instant case respondent admittedly broke into the Neiderjohn home with the intent to search for and take away a gun he believed was present. In fact he found no gun but did take other property of Mrs. Neiderjohn — an axe handle and a piece of metal pipe — without her consent, and he exercised dominion over that property inconsistent with the rights of the owner. Regardless of whether he intended to keep the property, under the evidence adduced he could have been charged with and been found to have committed burglary in the second degree.

The court concurs in the findings and conclusions of the commission as set forth in its first finding. The conduct of respondent if engaged in by a private citizen would be highly reprehensible. This conduct when engaged in by a judge is intolerable and demonstrates an attitude that cannot be countenanced on the part of a person who sits in judgment of others.

Judge Duncan violated Rule 2, Canon 2(A), which provides: “A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” For his actions in the Neiderjohn affair alone, he should be and he hereby is removed from the office of judge of the probate court and ex officio magistrate of Iron county, Missouri.

Having concluded that Judge Duncan’s conduct in breaking into the Neiderjohn home and the taking of property therefrom is more than sufficient in itself to demand removal from office, the court need not decide other objections presented in respondent’s brief relating to other charges and findings.

It is accordingly ordered, adjudged, and decreed by this court that respondent, Jack Duncan, be and is hereby removed from office of probate judge and ex officio magistrate of Iron county, Missouri.

All of the Judges concur.


author: BILLINGS, Chief Judge.

text:
    Larry WINFIELD, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10067.
    Missouri Court of Appeals, Springfield District.
    Sept. 14, 1976.
    Anthony J. Heckemeyer, Sikeston, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Movant Larry Winfield’s grounds for post-conviction relief from a sentence for rape — that his plea of guilty was involuntary and he did not have effective assistance of counsel — are refuted by his guilty plea transcript. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Hogshooter v. State, 514 S.W.2d 109 (Mo. App.1974).

The trial court did not err in denying the Rule 27.26 motion without conducting an evidentiary hearing.

All concur.


text:
    Juanita WINCHESTER and Jimmy Winchester, her husband, Plaintiffs-Appellants, v. Carter P. FENTON, D. O., et al., Defendants-Respondents.
    Nos. 10160, 10167.
    Missouri Court of Appeals, Springfield District.
    Sept. 14, 1976.

      William S. Rader, Rader & Richey, Cape Girardeau, for plaintiffs-appellants.
    James E. Godfrey, Godfrey, Vandover & Burns, Inc., St. Louis, for defendants-respondents Carter P. Fenton, D. O., and T. P. Fenton, D. 0.
    A. M. Spradling, III, Spradling, Drusch & Dillard, Cape Girardeau, for defendant-respondent Chaffee General Hospital, Inc.
    Albert C. Lowes, Buerkle, Buerkle & Lowes, Jackson, for defendants-respondents Host Houses of America, Inc., and Minnie Steward Moore.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Malpractice action. Plaintiffs, husband and wife, have appealed from the dismissal of their suit for damages by the Circuit Court of Scott County because not brought within the two-year period of limitations governing malpractice actions. We affirm.

Plaintiffs’ petition was filed February 19, 1975. This petition, as well as subsequent amended petitions, sought damages against the defendants because of burns received by the wife on February 9,1973, while she was hospitalized.

The applicable portion of the statute of limitations, § 516.140, RSMo 1969, is as follows:

“All actions against physicians, surgeons . . . nurses, hospitals . . . for damages for malpractice, error, or mistake shall be brought within two years from the date of the act of neglect complained of. . .” (our emphasis).

Assuming, without deciding, that plaintiffs’ allegations were sufficient to charge the defendants with negligence, the act of neglect upon which liability was sought to be predicated occurred more than two years before the plaintiffs filed this suit. Their action for damages is thus barred by the statute. Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. banc 1968); Holland v. Duckworth, 539 S.W.2d 326 (Mo.App., filed July 22, 1976). Negligent treatment by the defendants subsequent to February 9, 1973, was not alleged and, consequently, Thatcher v. De Tar, 351 Mo. 603,173 S.W.2d 760 (1943), relied upon by plaintiffs to avoid the statutory bar, is not applicable.

The judgment is affirmed.

All concur.


author: CLEMENS, Presiding Judge.

text:
    Robert Lee TINSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37557.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 14, 1976.

      Huck, Kasten & LaBeaume, Herbert A. Kasten, Jr., St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

Movant appeals the denial of his writ of error coram nobis to vacate a 1967 conviction on his plea of guilty to carrying a concealed weapon. The ensuing one-year sentence was probationary and has been served. Movant seeks to vacate the concealed weapons conviction because in 1971 the state used it to enhance his sentence on a subsequent murder conviction under the Habitual Criminal Act. State v. Tinson, 491 S.W.2d 279 (Mo.1973).

Movant first alleges the trial court erroneously considered the murder conviction in the course of its hearing on his motion. He contends this was irrelevant and prejudicial. The existence of the murder conviction was not irrelevant; it was pleaded by movant as a prerequisite to his writ of error coram nobis and used by the trial court to determine the movant’s credibility. To vacate a completed sentence a movant must show he is suffering present adverse legal circumstances which require relief to achieve justice. No error here.

Movant contends error in the trial court’s findings about the condition of the concealed weapon. At' the coram nobis hearing, movant for the first time offered testimony the concealed gun could not have been fired and he could not therefore be convicted of carrying a concealed weapon. He contends this evidence entitles him to relief.

Relief under a writ of error coram nobis can be granted only when an error of fact not apparent on the record is discovered, State v. Campbell, 307 S.W.2d 486[1, 2] (Mo.1958), and, if the undiscovered fact was unknown to the movant or not discoverable by him by the exercise of reasonable diligence. Howard v. State, 493 S.W.2d 14[4] (Mo.App.1973). The record here shows movant knew or could have known when arrested that his gun could not be fired. The condition of the gun was not therefore reviewable in the coram nobis proceeding and on appeal we need not review the trial court’s findings on that issue.

Movant finally contends the trial court erred in not holding the search and seizure of his pistol was unlawful. This also is not a proper subject for a writ of error coram nobis. A motion to suppress evidence of the pistol was entered at the movant’s preliminary hearing; it was denied and movant then voluntarily pled guilty to the concealed weapons charge. He may not now challenge the search and seizure since it was fully adjudicated and cannot be challenged collaterally. Brodkowicz v. State, 474 S.W.2d 822[2, 3] (Mo. 1971). Furthermore, movant’s voluntary guilty plea waived all non-jurisdictional, procedural and constitutional infirmities at the prior stage of the proceedings. Simpson v. State, 487 S.W.2d 512[1] (Mo.1972).

Our review of the transcript briefs and authorities shows the trial court’s denial of the writ of error coram nobis was not clearly erroneous.

Judgment affirmed.

DOWD and STEWART, JJ., concur.

      . Although movant sought relief under Rule 27.26, he stated the relief sought was under a writ of error coram nobis, which was the proper form of relief where the challenged sentence has been served. State v. Stodulski, 298 S.W.2d 420[1, 2] (Mo. 1957).