text:
    David Stephen GOODE, Appellant, v. The STATE of Texas, State.
    No. 2-84-267-CR, 2-84-268-CR.
    Court of Appeals of Texas, Fort Worth.
    March 7, 1985.
    C. Warren Van Cleve, Arlington, for appellant.
    Tim Curry, Dist. Atty. and Mary Thornton Taylor, Asst. Dist. Atty., Fort Worth, for appellee.
    Before ASHWORTH, JOE SPURLOCK, II and HUGHES (Retired) (Sitting by Assignment), JJ.
   OPINION

HUGHES, Justice (Retired) (Sitting by Assignment).

Appellant, David Goode, pled guilty to the offenses of delivery of methaqualone, and possession and delivery of more than a quarter ounce of marihuana. In each case, Goode received a ten-year probated sentence. On September 23, 1983, the State filed a motion to revoke probation alleging three violations of probationary conditions: (1) driving while intoxicated on January 25, 1983; (2) driving while intoxicated on September 14,1983; and (3) failing a urinalysis for cannabinoids on May 16, 1983. At a hearing held on the State’s motion to revoke, the court found Goode violated the terms of his probation by driving while intoxicated on January 25, 1983, and September 14, 1983. On the basis of these findings, Goode’s probation was revoked. Appellant appeals on two grounds of error.

The judgment is affirmed.

In his first ground of error appellant claims that the trial court erred in revoking his probation as no evidence was presented concerning the January 25, 1983, drunk driving allegation. We disagree and overrule appellant’s first ground of error.

Appellate review of an order revoking probation is limited to a determination of whether the trial court abused its discretion. Barnett v. State, 615 S.W.2d 220, 222 (Tex.Crim.App.1981). Where the State has failed to meet its burden of proof, the trial court abuses its discretion in issuing an order to revoke probation. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984).

The burden of proof in a revocation proceeding is by a preponderance of the evidence. Martin v. State, 623 S.W.2d 391, 393 (Tex.Crim.App.1981). The State satisfies its burden of proof in a probation revocation proceeding when the greater weight of credible evidence before the trial court creates a reasonable belief that a condition of probation has been violated. Pettit v. State, 662 S.W.2d 427, 429 (Tex.App. — Corpus Christi 1983, pet. ref’d).

It is well-settled that sufficient proof of any one of the alleged violations of the condition of probation will support the court’s order to revoke probation. Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App.1980); Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App.1979); Castro v. State, 662 S.W.2d 460, 462 (Tex.App. — Corpus Christi 1983, pet. ref’d).

A review of the record in the present case reveals that appellant is correct in stating no evidence was presented regarding the January 25, 1983 drunk driving allegation. The record, however, does contain ample evidence for the trial judge to have concluded that appellant was driving while intoxicated on September 14, 1983.

Both the arresting officer and the officer who unsuccessfully administered the intoxi-lyzer test to appellant testified that in their opinion appellant was intoxicated at the time of his arrest as he smelled of alcohol, and stumbled and swayed when he walked. They also observed that appellant was glassy-eyed. The arresting officer further testified that when he first noticed appellant’s car it was weaving in and out of the traffic lanes at a high rate of speed and almost collided with several cars traveling in the same direction. This officer also stated that before he pulled appellant’s car over he saw the car go over on the shoulder of the road about three times. After he pulled appellant over, the officer said he detected a strong odor of alcohol on Goode’s breath. The officer further testified that appellant lacked coordination and was unable to walk a straight line. The officer also observed that appellant’s eyes were glassy and bloodshot, his speech was slurred and he seemed confused and disoriented.

On the basis of these recitals, we find that the State met its burden of proof as to the September 14, 1983 violation. We therefore hold that since there was sufficient proof of this violation the trial court did not abuse its discretion in revoking appellant’s probation. No evidence regarding the January 25, 1983 violation was needed. We accordingly overrule appellant’s first ground of error.

In his second ground of error Goode complains that the trial court abused its discretion in revoking his probation on the basis of the September 14, 1983 drunk driving allegation as the State did not show the offense occurred “upon a public road or highway in this State....” See Act of June 13, 1979, ch. 682, sec. 3, 1979 Tex.Gen. Laws 1609, 1609, amended by Act of June 16, 1983, ch. 303, sec. 3, 1983 Tex.Gen.Laws 1574, 1574-77. The Court of Criminal Appeals has held that identification of the highway by name is sufficient to show that a defendant was driving while intoxicated upon a public road or highway. Ginn v. State, 439 S.W.2d 840, 840 (Tex.Crim.App.1969) (testimony that appellant was driving “on the Gladewater Highway, U.S. 271, east of Tyler” found sufficient); Theiss v. State, 164 Tex.Cr.R. 661, 302 S.W.2d 139, 140 (Tex.Crim.App.1956) (testimony that appellant was driving on U.S. 75, a highway in Harris County, Texas deemed sufficient); accord Gersbach v. State, 648 S.W.2d 423, 424 (Tex.App. — Austin 1983, no pet.).

The arresting officer testified that he first saw the automobile appellant was driving while on patrol on Highway 360 northbound, a main thoroughfare. The officer further stated that at the time of the arrest Goode was stopped at a red light at the intersection of Highway 360 and Brown in Arlington, Texas. On the basis of Ginn and Theiss we find that the State, through the officer’s testimony, proved the offense occurred on a public road or highway. See Ginn, 439 S.W.2d at 840; Theiss, 302 S.W.2d at 140. We overrule appellant’s second ground of error.

The judgment is affirmed.


source: Caselaw Access Project

author: JOE SPURLOCK, II, Justice.

license: Public Domain

text:
    Katrina Hurley STONE, Appellant, v. The STATE of Texas, State.
    No. 2-84-062-CR.
    Court of Appeals of Texas, Port Worth.
    March 7, 1985.

      Robert J. Wilson & Associates, Inc., Robert J. Wilson, Burleson, for appellant.
    Tim Curry, Dist. Atty. and David Chapman, Asst. Dist. Atty., Fort Worth, for appellee.
    Before ASHWORTH, JOE SPURLOCK, II and HILL, JJ.
   JOE SPURLOCK, II, Justice.

Appellant, Katrina Hurley Stone, was charged by information with the offense of driving while intoxicated. Public Beaches — Traffic Regulation — Speed and Driving While Intoxicated, ch. 682, sec. 3, 1979 Tex.Gen.Laws 1608, 1609, amended by Act of June 16, 1983, ch. 303, sec. 3, 1983 Tex.Gen. Laws 1568, 1574-77. Stone, upon a plea of not guilty, was found guilty by a jury which assessed her punishment at 30 days confinement in the Tarrant County Jail and a $500 fine (probated).

We reverse and remand.

Stone raises two grounds of error on appeal both of which challenge the court’s charge to the jury. At trial, Stone, pursuant to TEX.CODE CRIM.PROC.ANN. art. 36.15 (Vernon Supp.1985), requested two special instructions to be given to the jury. The instructions were read into the record and the second instruction was also presented to the trial court in writing. Both instructions were refused and Stone now contends that such refusal was reversible error.

Ground of error one complains of the court’s refusal to submit Stone’s first requested instruction which stated:

When a chemical test is given and testimony concerning the result of the test are admitted into evidence, you may disregard the results of said test if you entertain a reasonable doubt as to whether or not the chemical test instrument was in good operating condition on the date in question, or to any question of accuracy of the test or the results thereof.

At trial, there was evidence presented which showed that the breath tube on the intoxilyzer used to test Stone had a small hole in it. In ground of error one, Stone contends that the machine was therefore not in good working order and that she was entitled to the above limiting instruction.

Further evidence showed that when the hole was discovered, the intoxilyzer was taken out of service and the breath tube replaced. The evidence also showed that such a hole might result in a lower test result but would not cause a higher test result. We find that the existence of the hole would, at most, affect the weight to be accorded to the intoxilyzer test results. See Slagle v. State, 570 S.W.2d 916 (Tex.Crim.App.1978).

The court’s charge to the jury stated that the level of alcohol in the blood as shown by chemical analysis “merely raises a legal presumption that such person was under the influence of intoxicating liquor”. The jury was further charged in accordance with TEX.PENAL CODE ANN. sec. 2.05 (Vernon 1974):

(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;
* * * * * *
(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

We find that the requested instruction would constitute an impermissible comment on the weight of the evidence. We further find that the charge given adequately protected the rights of Stone. Stone’s ground of error one is overruled.

In ground of error two, Stone argues that the court erred in not submitting her requested instruction as to whether or not probable cause existed at the time her vehicle was stopped by the arresting officer. Her requested instruction was:

You are instructed that before an officer is entitled to stop a moving vehicle, he must have probable cause to do so. In this case it is conceded that the only probable cause to stop the Defendant’s vehicle was the fact that the Defendant supposedly was weaving in the highway. On-the other hand, the Defendant and her witness testified that the Defendant was able to properly operate her motor vehicle on the occasion in question.
It is for you to determine at the outset of your deliberation whether or not Defendant’s driving of her vehicle was such as the officer has described, and it is the burden of proof on the State in this regard that you must find the Defendant was driving as the officer indicates, beyond a reasonable doubt. - In the event you are not satisfied beyond a reasonable doubt that the Defendant drove as the officer testified, then you will have no further evidence to consider, and you should bring in a verdict of acquittal.

At trial, the arresting officer testified that he stopped Stone’s car because he had observed her driving in a “hazardous” manner. He testified that the car was weaving. Stone testified that at the time she was stopped she was not operating her car in an unusual or hazardous manner and that she was not weaving. Stone’s ground of error two contends that the evidence raised the issue of lack of probable cause to stop her car.

In its supplemental brief, the State agrees there can be error in failing to instruct the jury pursuant to TEX.CODE CRIM.PROC.ANN. art. 38.23 (Vernon 1979), which states:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

In accordance with the highest standards of professional competency, the State has brought the above statute to this court’s attention even though the appellant did not do so. The State, however, argues that the statute is inapplicable in this case because the requested charge was improper and in effect insufficient to put the court on notice. We disagree.

The evidence, although contradictory, was sufficient to raise the issue of lack of probable cause. Having objected to the charge, called the omission to the court’s attention, and requested a charge, Stone was entitled to have the jury charged on the question of probable cause. See Kelly v. State, 669 S.W.2d 720 (Tex.Crim.App.1984); Hall v. State, 649 S.W.2d 627 (Tex.Crim.App.1983) and Murphy v. State, 640 S.W.2d 297 (Tex.Crim.App.1982).- Although the requested charge itself is not a proper charge, we find the request was sufficient to call the trial court’s attention to the omission in the court’s charge. See Stiles v. State, 520 S.W.2d 894 (Tex.Crim.App.1975). We hold that having knowledge of the omission in the charge, it was reversible error for the trial court to refuse to charge the jury on the issue of lack of probable cause to stop the vehicle. Stone’s ground of error two is sustained.

Stone’s conviction is reversed and the cause remanded to the trial court for further proceedings.


text:
    Jack F. HELMCAMP, Appellant, v. INTERFIRST BANK WICHITA FALLS, N.A., Appellee.
    No. 2-84-147-CV.
    Court of Appeals of Texas, Fort Worth.
    March 7, 1985.
    Law Offices of Ron L. Yandell, Suzan Redmond, Wichita Falls, for appellant.
    Gibson & Hotchkiss, J. Keaton Grubbs and Frank D. Trotter, Wichita Falls, for appellee.
    Before HUGHES, JORDAN and JOE SPURLOCK, II, JJ.
   OPINION

JOE SPURLOCK, II, Justice.

This case involved a suit on a promissory note. The appellee, InterFirst Bank of Wichita Falls, N.A., filed suit against appellant, Jack F. Helmcamp, and A. Lynn Castle alleging joint and several liability on a promissory note executed on November 17, 1981. The Bank was granted summary judgment against both Helmcamp and Castle, jointly and severally. Helmcamp was further granted judgment over against Castle. Castle has not appealed from the judgment.

We reverse and remand.

Helmcamp raises three points of error. Points of error one and two contend that the court erred in granting summary judgment in that a genuine issue of fact exists as to his affirmative defenses. Point of error three contends that a genuine question of fact exists as to his existence as an accomodation party. We will only address Helmcamp’s points of error one and two as his existence as an accommodation party would not act to discharge his liability on the note. TEX.BUS. & COM. CODE ANN. sec. 3.415 (Vernon Supp. 1985). See Reed v. Buck, 370 S.W.2d 867 (Tex.1963).

In point of error one, Helmcamp contends that the court erred in granting summary judgment against him on the note in that the Bank did not establish its cause of action as a matter of law as a genuine question of fact exists as to the affirmative defenses established by him. Point of error two is that a genuine question of fact exists as to whether Helmcamp waived his affirmative defenses against liability on the promissory note. We agree with both of his contentions.

It is well settled that “[t]o be entitled to a summary judgment, the movant has the burden of establishing that there exists no material fact issue and that he is entitled to judgment as a matter of law.” Town North National Bank v. Broaddus, 569 S.W.2d 489, 494 (Tex.1978). Standing alone, the Bank’s pleadings, motions and supporting proof would entitle it to the judgment rendered and Helmcamp does not contend otherwise. However, he does contend that he asserted affirmative defenses which raised genuine questions of fact. His answer to the motion for summary judgment asserted the affirmative defenses of fraud, duress, wrongful inducement and lack or failure of consideration. In order to avoid summary judgment, Helmcamp had the burden to show the existence of an issue of fact with respect to his affirmative defenses. Id. at 494.

The parol evidence rule excludes evidence to vary the terms of a written contract. One exception to this rule permits the admission of extrinsic evidence to show that the execution of a note was procured by fraud. Viracola v. Dallas International Bank, 508 S.W.2d 472, 474 (Tex.Civ.App. —Waco 1974, writ ref’d n.r.e.). In order for Helmcamp to gain the benefit of such exception, it was incumbent on him to show some type of trickery, artifice, or device employed by the Bank in addition to the showing that the Bank represented to him that he would not be liable on such note. Town North National Bank, 569 S.W.2d at 494. We believe that the summary judgment proof offered by both parties accomplished this and that Helmcamp comes within this exception.

The summary judgment proof, offered to the court, established the following: The Bank brought suit on a note executed on November 17, 1981, by both Helmcamp and Castle. This note was the fifth renewal on a note executed on December 31, 1979. This note was signed by Helmcamp as a maker of the note and co-signed by Castle. The 1979 note was for the principal sum of $55,000 and was unsecured. It is undisputed that the alleged purpose of the funds were for the purchase, by Castle, of a farm and that he needed to do so immediately. Helmcamp did not receive any of the proceeds from this loan, and had no relationship with Castle otherwise. No payments were made on the note, Castle disappeared, and Helmcamp claims that he renewed the notes under duress.

The affidavit of Helmcamp establishes that he was approached by Gene Pullam, an officer of the Bank and longtime friend, to cosign the note with Castle for a short period of time. The Bank wanted to loan the money to Castle, and it would help the Bank for Helmcamp to co-sign. Pullam represented to Helmcamp that Castle had funds coming in which would cover the note before the note would become due. The day before Helmcamp signed the note, Pullam told him: “You will not lose a penny, and so you get down there and sign that note in the morning.” The affidavit of Celeste Mills also recites this statement by Pullam and further states that it was in the form of a command made by Pullam to Helmcamp. Helmcamp felt as though he was under duress from the Bank, with whom he had long been associated, to sign this note. Helmcamp never had any discussions with Castle about signing the note.

Helmcamp’s affidavit shows that when he went to sign the note, Dean Swinney, a loan officer, told him he would have to sign as the maker. Swinney delivered to Helm-camp a financial statement of Castle. Helmcamp states that he assumed the statement was accurate and that the Bank would have checked it out and would not have encouraged him to sign the note if the statement were not believable and worthwhile. He claims he relied on the statement in signing each of the notes in question. He further states that Castle was not present at the bank when he signed the note. His affidavit also alleges private dealings between Pullam and Castle.

The affidavit of Pullam reveals that he personally loaned Castle $7,000, interest free, sometime later in January, 1980. Pu-llam said he made other advances to Castle and eventually received back $9,500 from Castle sometime in late 1981. Helmcamp’s affidavit states that he never learned of these dealings uhtil Pullam was deposed, prior to trial. He questions whether Pu-llam was in fact repaid for a personal loan to Castle, or whether Pullam was getting a comnjission from Castle for inducing Helm-camp to sign the notes. Helmcamp further states that if he had known that the financial statement was inaccurate or of these private dealings it would have affected his decision.

We find a fact question exists of whether or not Helmcamp was induced solely by the actions of Pullam to sign the note of December 31, 1979, there being no other connection between Helmcamp and Castle. Such a finding is uncontradicted by any evidence before the trial court or presented to this court on appeal. The affidavits of Helmcamp and Mills raise a genuine issue of fact as to whether Pullam represented to Helmcamp that he, Helmcamp, would not be liable on the note. The existence of dealings between Pullam and Castle when coupled with the misrepresentation of Castle’s financial ability, as evidenced by the financial statement, raises a genuine issue of fact as to the existence of trickery, artifice or device used on behalf of the Bank in inducing Helmcamp to sign the note. The summary judgment proof, if true, satisfied all of the elements of fraud. Albritton v. Henry S. Miller Co., 608 S.W.2d 693, 695 (Tex.Civ.App. — Dallas 1980, writ ref’d n.r.e.). The facts of this case spotlight the issue of the propriety of a bank seeking out and inducing a longtime good customer into guaranteeing that bank’s imprudent loans to a questionable customer. This practice is especially questionable, perhaps fraudulent, when there is no benefit shown to pass to the long-time good customer, nor any connection existing between the customers. There is certainly a question of fact to be determined by the trier of fact as to the existence of trickery, artifice or device used to secure the “borrowers” signature.

We believe that our decision is in line with both Berry v. Abilene Savings Association, 513 S.W.2d 872 (Tex.Civ.App. —Eastland 1974, writ ref’d n.r.e.) and Vi-racola. We find no distinguishable difference between those cases and the present case. We further find that if Helmcamp was fraudulently induced to sign the original note then an issue of fact arises whether or not a waiver occurred through signing the renewals. A genuine issue of fact exists as to waiver, as waiver is a matter of intent. Viracola, 508 S.W.2d at 474. We sustain Helmcamp’s points of error one and two.

We reverse the trial court’s granting of summary judgment in favor of the Bank and remand the case to the trial court for further proceedings.


author: RENDLEN, Chief Justice.

text:
    EVERGREEN LAWN SERVICE, INC., Petitioner-Appellant, v. DIRECTOR OF REVENUE, State of Missouri and Administrative Hearing Commission, Respondents.
    No. 66377.
    Supreme Court of Missouri, En Banc.
    Feb. 26, 1985.
    Christopher F. Jones, Guy A. Schmitz, St. Louis, for petitioner-appellant.
    John Ashcroft, Atty. Gen., Melodie A. Powell, Asst. Atty. Gen., Jefferson City, for respondents.
   RENDLEN, Chief Justice.

Evergreen Lawn Service, Inc. (taxpayer) appealed to the Administrative Hearing Commission from the Director of Revenue’s assessment of sales and conservation taxes, plus interest and penalties. The appeal procedure is governed by § 161.273, RSMo 1978. Following hearing on review, the Commission dismissed the petition, finding it had not been filed, as required by § 161.273, within thirty (30) days of the mailing or delivery of the director’s decision to the taxpayer. The Court of Appeals, Western District, affirmed the dismissal; however, this Court ordered the cause transferred and it will be determined here as though on original appeal. Art. V, § 10, Mo. Const.

At issue is the meaning of the time limitation prescribed in § 161.273. Specifically, did a taxpayer who attempted to deliver and file his petition for review on the thirtieth day, when the thirtieth day happened to fall on a Saturday and the Commission failed to keep its offices open for business, meet the time requirement of that section? If attempted delivery and filing on the thirtieth day is not treated as a timely filing, the taxpayer argues that the Commission has “shortened” the statutory filing period by closing its offices on Saturday.

The relevant facts are these:

The Director of Revenue apparently sent its assessment to taxpayer by certified mail on July 24,1980. On August 22nd taxpayer forwarded its petition for review to the Commission via Airborne Freight Corporation. Airborne attempted to deliver the petition for filing with the Commission on Saturday, August 23rd, the thirtieth day, but the offices of the Commission were closed and no one was present to receive or file the petition. The Commission marked the petition as filed on its next business day, Monday, August 25th, the thirty-second (32) day. Following hearing, at which both parties admitted to the jurisdiction of the Commission, the Commission entered its order dismissing the petition because not filed within the thirty day period.

The Commission argues filing did not occur until Monday, August 25, 1980, and that taxpayer is somehow controlled by § 161.350, RSMo Cum.Supp.1981 (effective August 13, 1980) even though the attempted filing was undertaken by personal delivery and not by registered mail. The Commission’s arguments must fail. Although § 161.350 permits filing by mail and provides if such mailing is by “registered mail” it shall be deemed filed as of the date of the postal registration, this is not the only permissible mode for delivery and filing of such papers. Indeed, the controlling section (§ 161.273) provides that a party to a dispute may proceed to hearing before the Commission “by the filing of a petition” with the Commission. There is no requirement that it be filed by mail or otherwise. If, however, the petitioner selects mailing as the means of filing, § 161.-350 governs. Attempted filing on the thirtieth day by a petitioner in person or by any proper agent of the petitioner constitutes a proper mode of filing necessarily contemplated by the law. The petition dated August 22, 1980 was hand delivered to the Commission on Saturday and it must be deemed accepted on that date, and therefore timely filed, albeit not stamped by the Commission until the following Monday.

The result reached by the Commission and urged here runs contrary to the express legislative intent that the taxpayer act within the thirty days prescribed by § 161.273. A fair construction of the statute mandates that the taxpayer be given the full thirty days in which to affect his appeal. See Ball Stores, Inc. v. State Board of Tax Commissioners, 262 Ind. 386, 316 N.E.2d 674 (1974). The Commission cannot, by its own rules or conduct, limit the time — or opportunity — for filing given by the statute. See State Board of Registration for Healing Arts v. Masters, 512 S.W.2d 150 (Mo.App.1974). The phrase “within thirty days” as used in § 161.273 means filing “on or before” the thirtieth day. In a temporal context, the word “within” means “on or before.” Black’s Law Dictionary 1437 (Rev. 5th ed. 1979).

When a petitioner attempts to file an appeal on the thirtieth day (and that terminal date falls on a Monday thru Saturday) by personal delivery to the appropriate office but the actual filing is thwarted because the office is closed, the Commission must treat the petition as timely filed, at the time the office next opens. This approach does not require an “extension” of the statutory period when the terminal date falls on Saturday and relieves the Commission of the necessity to keep its offices open every Saturday. It also contemplates the possibility that the thirtieth day may fall on a week day which happens to be a holiday in which State offices are closed.

Thus, we hold that the Commission is deemed to have accepted the terminal Saturday filing when delivered to its offices (though closed) and to have processed the petition as timely filed on its next business day.

The order of the Administrative Hearing Commission dismissing taxpayer’s appeal is reversed and the cause is remanded to the Commission for further proceedings thereon.

All concur.

      . All statutory references are to RSMo 1978 unless otherwise indicated. Section 161.273 (transferred to § 621.050, RSMo Cum.Supp. 1984) provides in pertinent part:
      Except as otherwise provided by law, any person or entity shall have the right to appeal to the administrative hearing commission from any finding, order, decision, assessment or additional assessment made by the director of revenue. Any person or entity who is a party to such a dispute shall be entitled to a hearing before the administrative hearing commission by the filing of a petition with the administrative hearing commission within thirty days after the mailing or delivery of a decision of the director of revenue with respect to such dispute. The procedures applicable to the processing of such hearings and determinations shall be those established by chapter 536, RSMo.
      ******

      . Following oral argument on January 18, 1985, this Court was informed by letter of the Attorney General dated January 28, 1985, that "a recent inquiry of the Administrative Hearing Commission reveals that someone from the Commission staff picks up the mail on Saturdays, goes to the Commission offices and stamps any mail with the Saturday date.... [T]his practice was begun in . March, 1982. In light of the court's questions during oral argument ... it [is] important to inform the court that by these procedures, the Commission accepts Saturday filings.” Thus, the problem presented when delivery is by mail will not arise in cases presented to the Commission following this change in procedure.

      . No evidence has been presented as to the date the assessment was actually mailed; however, the assessment shows a "due date” August 23, 1980, and we assume for purposes of this discussion the mailing occurred July 24, 1980.

      . Section 161.350 (now transferred to § 621.-205) provides as follows:
      Pleadings deemed Hied, when. — For the purpose of determining whether pleadings are filed within the time allowed by law for the filing of such pleadings, pleadings transmitted to the administrative hearing commission by registered mail, but not by certified mail, shall be deemed filed with the administrative hearing commission as of the date shown on the United States post office records of such registration and mailing.

      . Section 1.040 provides that Sunday is excluded as a terminal date.

      . This policy choice for administrative procedures reaches a result consistent with that which would obtain if the Rules of Civil Procedure were applicable. See Rule 44.01(a) and (e). The taxpayer need not rely on application of the civil rules, however, because its rights are expressly protected by § 161.273. Moreover, this Court has expressly rejected applying Rule 44.01 to administrative matters. See R.B. Industries, Inc. v. Goldberg, 601 S.W.2d 5 (Mo. banc 1980); Springfield Park Central Hospital v. Director of Revenue, 643 S.W.2d 599 (Mo.1983).


author: WELLIVER, Judge.

text:
    Linda KANAGAWA, Appellant, v. The STATE of Missouri, By and Through its officers, David R. FREEMAN, in his official capacity as the former Director of Missouri Department of Social Services; Donald Jenkins, in his official capacity as the former Director of Missouri Department of Corrections; and Norris Williams, in his official capacity as the former Superintendent of the Central Missouri Correctional Center, Respondents.
    No. 66069.
    Supreme Court of Missouri, En Banc.
    Feb. 26, 1985.

      Lori J. Levine, Cullen Coil, Jefferson City, for appellant.
    John Ashcroft, Atty. Gen., Mike Boic-ourt, Steven W. Garrett, Asst. Atty. Gen., Jefferson City, for respondents.
   WELLIVER, Judge.

Appellant appeals from an order of the Circuit Court of Boone County sustaining a motion to dismiss her two count petition for personal injuries suffered when she was kidnapped, assaulted and raped by an escaped inmate of the Central Missouri Correctional Center in Jefferson City. Count I of the first amended petition names as defendant the State of Missouri. Count II names several individuals in their official capacities, including David R. Freeman, the Director of the Missouri Department of Social Services, Donald Jenkins, the Director of the Missouri Division of Corrections, and Norris Williams, the Superintendent of the Central Missouri Correctional Center. The Missouri Court of Appeals, Western District, affirmed as to Count I, but reversed the dismissal of Count II and remanded the cause for further proceedings to determine the liability of the named individuals. One judge dissented and transferred the cause to this Court on the ground that the majority opinion conflicted with prior appellate decisions in this state. Rule 83.01. We now decide the cause as though on original appeal to this Court. Rule 83.09. We affirm the judgment of the circuit court.

The amended petition charges respondents with negligence in the following respects:

4.On or about July 25, 1979, Steven Foerstel, a person with a history of having committed various sexual crimes and who was a convicted rapist, was permitted to escape from the [Central Missouri Correctional Center] ... as the direct result of defendant Freeman’s negligent supervision of his employees and of defendants’ Jenkins and Williams negligence in performing their ministerial duties while acting for the State of Missouri, in the following respects:
They and each of them knew or in the exercise of commensurate care should have known that: Foerstel had been transferred from the main penitentiary in Jefferson City to the Central Missouri Correctional Center; that he was a convicted rapist and had a record of having committed numerous sexual crimes; that the fences surrounding the Central Missouri Correctional Center were inadequate to confine one within those fences who desired to get out; that the gate or gate-house was manned by a female employee who was physically incapable of stopping or interfering with the escape of a person of Foerstel’s background, character, and size; the the [sic] gates were not properly locked or secured; that an attempt by Foerstel to escape from the Central Missouri Correctional Center was reasonably foreseeable by defendants.
5. Defendants failed to exercise ordinary care in the performance of their ministerial duties in that they failed and refused to adequately supervise their employees and insure that the prisoners were supervised.
6. The injuries hereinafter set forth suffered by plaintiff were caused by the above described conditions existing at the Central Missouri Correctional Center and the injuries to plaintiff directly resulted from such dangerous conditions which conditions created a reasonably foreseeable risk of harm of the kind of injuries and harm which were incurred by plaintiff and the conditions heretofore described gave or should have given the defendants actual or constructive notice of the existence of said dangerous conditions, in sufficient time prior to the injuries and harm to plaintiff to have enabled defendants to have taken appropriate measures to have protected plaintiff against the results brought about by said dangerous conditions.
7. As a direct result of defendants’ negligence aforesaid plaintiff was held captive, raped and kidnapped by escapee Foerstel and her arms, back, limbs and shoulders were lacerated, bruised, contused, wrenched and tom.

Appellant prays for $100,000 in damages in each count.

Respondents moved to dismiss the amended petition contending that (1) the State was immune from suit by virtue of sovereign immunity; (2) the individual defendants were immune from suit by virtue of official immunity; and (3) the doctrine of respondent superior did not operate to hold public officials vicariously liable for the acts or omissions of subordinate employees. The circuit court sustained the motion to dismiss without explanation.

In reviewing the circuit court’s dismissal of the amended petition, we must determine if the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. We treat the facts averred as true and construe all averments liberally and favorably to appellant. Detling v. Edelbrock, 671 S.W.2d 265, 267 (Mo. banc 1984); Shapiro v. Columbia Union National Bank & Trust Co. 576 S.W.2d 310, 312 (Mo. banc 1978), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979).

I

The circuit court dismissed appellant’s claim against the State of Missouri presumably after concluding that the State was protected from suit under the sovereign immunity statute. § 537.600, RSMo 1978. Appellant challenges that conclusion, contending that the amended petition states a claim falling within one of the two statutory exceptions to immunity. She relies on the provision waiving the State’s immunity from liability and suit in cases involving:

Injuries caused by the condition of a public entity’s property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

§ 537.600(2).

The legislature enacted the sovereign immunity statute in response to the judicial abrogation of the common law sovereign immunity doctrine in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977). The statute in relevant part provides that “[s]uch sovereign or governmental tort immunity as existed at common law in this state prior to [the Jones decision] ... shall remain in full force and effect ...” § 537.600. However, in an apparent attempt to mitigate the sometimes harsh effects of the common law doctrine, the legislature expressly waived sovereign immunity as to tort claims arising from the negligent operation of motor vehicles by public employees and from the dangerous condition of a public entity’s property if, and to the extent that, the public entity had acquired liability insurance. Bartley v. Special School District of St. Louis County, 649 S.W.2d 864, 870 (Mo. banc 1983); § 537.610.1, RSMo 1978. We previously have upheld the constitutionality of the statute, Winston v. Reorganized School District R-2, 636 S.W.2d 324 (Mo. banc 1982), and have stated that the “statutory provisions that waive sovereign immunity must be strictly construed.” Bartley v. Special School District of St. Louis County, supra at 867. See also Beiser v. Parkway School District, 589 S.W.2d 277, 280 (Mo. banc 1979).

The dangerous condition exception to sovereign immunity contained in § 537.-600(2) sets forth four prerequisites conditioning the waiver of immunity. A plaintiff seeking to state a claim under the exception must allege facts that demonstrate: (1) a dangerous condition of the property; (2) that the plaintiffs injuries directly resulted from the dangerous condition; (3) that the dangerous condition created a reasonably foreseeable risk of harm of the kind the plaintiff incurred; and (4) that a public employee negligently created the condition or that the public entity had actual or constructive notice of the dangerous condition. Appellant has alleged that the prison property was maintained in a dangerous condition in that the fences surrounding the prison were inadequate to prevent an escape and that the prison’s gate was left unsecured. The question presented is whether these allegations suffice to state a “dangerous condition” as that term is used in § 537.600(2).

Instructive on this issue is Twente v. Ellis Fischel State Cancer Hospital, 665 S.W.2d 2 (Mo.App.1983), a case similar to the one now before us. In Twente, the plaintiff sued a state-owned hospital and the Department of Social Services for injuries she sustained when assaulted and raped on the hospital’s parking lot. Suit was brought on the theory that defendants, by negligently maintaining their property in a dangerous condition, exposed plaintiff to an intentional tort at the hands of a third party. The dangerous condition alleged included knowledge of prior assaults on or near the parking lot, a inadequate security staff to effectively guard the grounds and the absence of the guard assigned to police the parking lot. The Western District held that the petition failed to allege a “dangerous condition.” The court concluded, after reviewing the concerns prompting enactment of the sovereign immunity statute along with the language of § 537.600(2) and the meaning generally ascribed to the term “dangerous condition” in this and other states, that “dangerous condition” as used in § 537.600(2) refers to defects in the physical condition of the public entity’s property. Id. at 11-12.

We believe the court of appeals in Twente correctly interpreted the statute. It is readily apparent that the legislature, by including the various elements set forth above conditioning the waiver of immunity, sought to narrowly delimit the scope of § 537.600(2). It would violate both this manifest legislative purpose and our policy of strictly construing provision waiving sovereign immunity to hold that “a dangerous condition” refers to a condition other than a defect in the physical condition of public property.

The allegations in the petition fall short of averring a defect, through either faulty construction or maintenance, in the condition of the prison’s property. Indeed, the facts alleged demonstrate beyond doubt that the escaped inmate, and not the condition of the State’s property, caused appellant’s injuries. To state a claim under § 537.600(2), a plaintiff must allege more than that a public entity’s property in some remote way presaged the commission of a tort by another party. See Bates v. State, 664 S.W.2d 563 (Mo.App.1983). Count I was properly dismissed.

II

Our conclusion that § 537.600 renders the State immune from suit does not necessarily foreclose the possibility that the individual respondents may be held liable for the injuries appellant sustained. The gravamen of Count II is that the named state officials failed to exercise reasonable care to prevent the escape of the inmate “in that they failed and refused to adequately supervise their employees and insure that the prisoners were supervised.” The issue before us is whether respondents are protected from suit by official immunity.

It is well established that public officers acting within the scope of their authority are not liable for injuries arising from their discretionary acts or omissions, but they may be held liable for torts committed when acting in a ministerial capacity. Rustici v. Weidemeyer, 673 S.W.2d 762, 768-69 (Mo. banc 1984); Reed v. Con way, 20 Mo. 15, 32 (1854); Smith v. Lewis, 669 S.W.2d 558 (Mo.App.1983); Jackson v. Wilson, 581 S.W.2d 39, 42 (Mo.App.1979). The official immunity doctrine serves an important function in our society. Courts and legal commentators have long agreed that society’s compelling interest in vigorous and effective administration of public affairs requires that the law protect those individuals who, in the face of imperfect information and limited resources, must daily exercise their best judgment in conducting the public’s business. Jackson v. Wilson, supra; Gregoire v. Biddle, 177 F.2d 579 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed.2d 1363 (1950); W. Prosser, Law of Torts § 132 at 987 (4th ed.1971); Restatement (Second) of Torts § 895D, comments b, d (1965). “If an officer is to be put in fear of financial loss at every exercise of his official functions, manifestly the interest of the public will inevitably suffer from the too complacent attitude thus engendered.” Smith v. Berryman, 272 Mo. 365, 199 S.W. 165, 167 (Mo. banc 1917). "

Whether an act can be characterized as discretionary depends upon the degree of reason and judgment required. It has been said that a discretionary act requires “the exercise of reason in the adaption of means to an end and discretion in determining how or whether an act should be done or course pursued.” Rustici v. Weidemeyer, supra, at 769, quoting Jackson v. Wilson, supra, at 43. In a similar vein, we stated in Sherrill v. Wilson, 653 S.W.2d 661, 667 (Mo. banc 1983), that “ ‘[discretion’ relates not so much to the exercise of naked and unrestrained power as to the exercise of judgment” and cautioned that “courts should not construe the term ‘discretionary’ too narrowly” lest they frustrate “the need for relieving public servants of the threat of burdensome litigation.” Id. at 65.

A ministerial function, in contrast, is one “of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed.” Rustici v. Weidemeyer, supra, at 769, quoting Yelton v. Becker, 248 S.W.2d 86, 89 (Mo.App.1952). While the above definitions provide useful guidelines, in the final analysis the decision as to whether a public official’s acts are discretionary or ministerial must be determined by the facts of each particular case after weighing such factors as the nature of the official’s duties, the extent to which the acts involve policymaking or the exercise of professional expertise and judgment, and the likely consequences of withholding immunity.

Appellant argues that the allegations of negligence leveled against respondents—that they failed to ensure that the gates to the prison were locked and that the facility was adequately secured—concern functions that should be performed in a regular and prescribed manner and therefore must be considered ministerial. The court of appeals found the contention persuasive, but we believe appellant has mis-characterized the essential nature of respondents’ duties with respect to the supervision of prison facilities and employees. We do not doubt that certain functions affecting prison security must be routinely performed and might fairly be described as ministerial. These functions, however, are carried out by security personnel who are not party to this suit and for whom respondents cannot be held vicariously liable. See Rennie v. Belleview School District, 521 S.W.2d 423, 425 (Mo. banc 1975); Jackson v. Wilson, supra, at 46. Respondents perform an entirely different function in connection with prison supervision. As the ranking officials within the State’s correctional system, they are responsible for, among other things, designing policies and standards for prison security that, when carried out by subordinates, safeguard both inmates and the public from physical harm. These decisions necessarily involve the exercise of a substantial degree of judgment and require consideration of the manifold aspects of prison operation, the nature and physical design of the facility in question and the vagaries of state appropriations. We believe such decisions should be made free from the fear of civil litigation and liability.

Holding respondents immune from suit is consistent with the result in Jackson v. Wilson, supra. In Jackson, the plaintiff sued the Director of Parks and Recreation for injuries sustained when diving into a river in a state park. The plaintiff alleged that the Director negligently formulated policies for the supervision of the park. Noting that many factors must be weighed in preparing such policies, the Western District concluded the Director was acting in a discretionary capacity and held that he was immune from suit.

Inasmuch as we hold that respondents are immune from suit, we need not reach the issues addressed in Sherrill v. Wilson, supra. See also Jamierson v. Dale, 670 S.W.2d 195 (Mo.App.1984); Nelson v. Freeman, 537 F.Supp. 602 (W.D.Mo.1982), aff'd sub nom. Nelson v. Missouri Division of Family Services, 706 F.2d 276 (8th Cir.1983). Compare Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982); Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984).

The judgment is affirmed.

All concur.

      . At the time this suit arose, the Division of Corrections was within the Department of Social Services. See Omnibus State Reorganization Act of 1974 § 13. The Division is now a separate department called the Department of Corrections and Human Resources. § 217.005, RSMo Cum.Supp.1984.

      . We note that the amended petition, filed prior to our decision in Bartley, does not allege procurement of liability insurance by the State. It is unnecessary to afford appellant an opportunity to correct this omission in light of our disposition of Count I on the merits.

      . We have examined State v. Silva, 86 Nev. 911, 478 P.2d 591 (1970), cited to us by appellant, and find its reasoning unpersuasive and inconsistent with Missouri authorities.


author: BLACKMAR, Judge.

text:
    BUNGE CORPORATION, Appellant, v. PERRYVILLE FEED & PRODUCE, INC., Respondent.
    No. 66308.
    Supreme Court of Missouri, En Banc.
    Feb. 26, 1985.
    Stephen C. Wilson, Jackson, for appellant.

      Dennis C. Brewer, Perryville, for respondent.
   BLACKMAR, Judge.

This case involves the constitutional validity of § 435.460, RSMo 1983 Supp., in a matter which is within the coverage of the Federal Arbitration Act, 9 U.S.C. § 1, et seq.

The plaintiff-appellant is a New York corporation. On July 15, 1983, the plaintiff entered into a contract to purchase from the defendant-respondent 500 bushel of # 1 yellow soybeans for a price of $6.48 per bushel. The soybeans were to be delivered to the plaintiff at Cairo, Illinois. The contract contained the following provision:

The terms of this confirmation are subject in all respects to the rules and regulations of the exchange, board, or association designated above. If the seller is not a member of the said exchange, board or association, then the rules and regulations of the National Grain and Feed Association shall govern. Buyer and Seller agree that all disputes and controversies between them with respect to this confirmation shall be arbitrated according to said rules and regulations, and that judgment may be entered on the arbitration award in any court of competent jurisdiction.

The plaintiff, on June 13, 1984 filed in the court below a pleading entitled “Application to Confirm Arbitration Award.” It was alleged that the defendant failed to deliver the soybeans as required, that the plaintiff then sought arbitration in accordance with the rules of the National Grain and Feed Association, that the defendant refused to participate in the arbitration, and that a default award was rendered in favor of the plaintiff in the amount of $5,876.86. Judgment for that amount and costs was prayed for.

The defendant filed a Motion to Dismiss, alleging three grounds. The trial court overruled ground one, which asserted that the plaintiff should have brought an action to compel arbitration rather than proceeding to default, and ground three, claiming that the defendant was disadvantaged because the arbitration hearing was to be held in Washington, D.C., but sustained the motion on ground two, reading as follows:

2. The Plaintiff failed to give to the Defendant proper notice of arbitration, since the contract of the Plaintiff as shown on the Exhibit on the Plaintiff’s application to confirm arbitration award did not contain the following language: “THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.” Contrary to Section 435.460 RSMo.1980. The defendant complained of a lack of notice but the Plaintiff proceeded to arbitration and claims to have obtained a default against the Defendant.

The plaintiff appealed directly to this Court inasmuch as the validity of a Missouri statute under the Supremacy Clause of the Constitution of the United States (Art. VI, Clause 2) is involved.

The contract between the plaintiff and the defendant, calling for the delivery by the Missouri defendant of soybeans to the plaintiff in Cairo, Illinois, is manifestly “a contract evidencing a transaction involving commerce” within the meaning of the Federal Arbitration Act, 9 U.S.C. § 1-14. 9 U.S.C. § 2 reads as follows:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

The Federal Arbitration Act was adopted in 1925. As to transactions within its compass, it does away with the common law proposition that an executory agreement to arbitrate, as distinguished from an agreement to submit a particular dispute to arbitration, is unenforceable. With or without the Missouri statute, the defendant could be compelled to arbitrate a dispute under the soybean contract in accordance with the federal act. Cf. State ex rel. St. Joseph Light & Power Co. v. Donelson, 631 S.W.2d 887 (Mo.App.1982).

Missouri’s arbitration act was adopted in 1980. (RSMo § 435.350-435.470). Prior to that time Missouri adhered to the common law rule of unenforceability of executory agreements to arbitrate. Jenks v. Jenks, 385 S.W.2d 370 (Mo.App.1964). The Missouri statute is based on the Uniform Arbitration Act as adopted by the Commissioners on Uniform State Laws, but it contains a provision not found in the Uniform Act, as follows:

Each contract subject to the provisions of sections 435.350 to 435.470 shall include adjacent to, or above, the space provided for signatures a statement, in ten point capital letters, which read substantially as follows: “THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.”

It is clear that § 435.460, if applied to this case, seeks to impose a requirement for contracts to arbitrate which is in addition to the requirements of the Federal Arbitration Act. All that is apparently required under that act is contractual language and format sufficient for an ordinarily written contract. Medical Development Corp. v. Industrial Molding Corp., 479 F.2d 345 (10th Cir.1973). If the Missouri statute applies, then a commercial contract sufficient under federal law would be in violation.

There is a manifest violation of the supremacy clause if our statute is so applied. The Federal Arbitration Act was passed by Congress pursuant to its power to regulate interstate commerce (U.S. Const. Art. I, Sec. 8, Clause 3). Any requirement of state law which adds a burden not imposed by Congress is in derogation of the Congressional power, and pro tanto invalid. A very recent case so holding is Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984), in which the state of California sought to require judicial consideration of claims arising under a statute regulating franchise investments. The Supreme Court held that the California statute could not bar an arbitration remedy under a contract which is within the coverage of the Federal Arbitration Act.

To the same effect is Collins Radio Company v. Ex-Cell-O Corporation, 467 F.2d 995, 999 (8th Cir.1972), holding that a Texas statute requiring “counsels’ signature” on an arbitration agreement could not be applied to contracts within the coverage of the federal statute. The opinion states as follows:

In sum, special state laws or decisions governing the validity of arbitration agreements do not apply when those agreements are contracts, or parts of contracts, ‘evidencing a transaction involving [interstate or foreign] commerce.’ ... (Emphasis added.)

We do not hold that the Missouri statute is unconstitutional. We simply hold that it may not be applied to defeat the arbitration provision of a contract which is within the coverage of the federal statute. We do not have to decide, and we do not decide, whether an arbitration agreement governed by Missouri law is unenforceable in all events if the mandatory language of § 435.460 is not included in the type style required. We simply hold that the trial court erred in sustaining the motion to dismiss on the ground assigned.

Defendant’s counsel argued that the federal statute cannot be applied to a proceeding in the Missouri courts. This clearly is not so. An action under the Federal Arbitration Act may be brought in a state court. State ex rel. St. Joseph Light and Power Co. v. Donelson, supra. The court under the supremacy clause is obliged to apply federal law, and may not apply state law, substantive or procedural, which is in derogation of federal law. Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). We have no occasion to decide whether the plaintiff has complied with the federal procedural requirements, or whether the defendant has other defensive matters. Those issues are for the trial court to resolve on remand.

The order of dismissal is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

All concur.


author: PER CURIAM. WELLIVER, Justice,

text:
    Honorable Ellis GREGORY, Jr., et al., Plaintiffs-Respondents, v. Honorable William CORRIGAN, et al., Defendants-Appellants.
    No. 66614.
    Supreme Court of Missouri, En Banc.
    Feb. 26, 1985.

      F. Wm. McCalpin, Michael A. Vitale, St. Louis, for defendants-appellants.
    Alan G. Kimbrell, St. Louis, for plaintiffs-respondents.
   PER CURIAM.

This case arises out of a dispute within the Twenty-first Judicial Circuit concerning local rules of court. At issue is the validity of two of the circuit’s local court rules. It has reached this Court by virtue of an appeal from a declaratory judgment by a special trial judge appointed by this Court to hear the case. The trial judge found both rules to be null and void. We affirm in part and reverse in part, finding one of the two rules valid.

The disputed rules were adopted by a majority of the circuit judges in an en banc meeting of the Twenty-first Judicial Circuit on June 3, 1984. Local Rule 100.1.1(4) limits candidates for presiding judge to those whose nominations are seconded by a majority of the circuit judges. Local Rule 100.1.2(3) vests in the presiding judge certain administrative powers. Among these are the authority to assign division clerks, direct the circuit clerk to establish an office for the maintenance of court files and transfer the operation of the traffic control offices for case assignments to the circuit clerk. By reason of Mo. Const, art. V, § 15.1, only circuit judges make the rules. of court, so that the associate circuit judges did not participate in the adoption of these two local rule amendments.

On July 20, 1984, twelve of the thirteen associate circuit judges of the Twenty-first Judicial Circuit instituted this suit, naming as defendants thirteen of the twenty circuit judges of the circuit. The plaintiffs sought declarations that the two amended rules were invalid. They also sought to enjoin enforcement of the new rules. The circuit judges moved for dismissal of the cause, but their motion was overruled. The trial court sustained a motion for temporary injunctive relief and subsequently ruled in favor of the plaintiffs as to the validity of the local court rule amendments. We granted expedited review.

On appeal to this Court, the circuit judges initially challenge as error the trial court’s refusal to dismiss the case on a jurisdictional basis. Defendants assert that this issue should have been presented to the Supreme Court in the first instance by a petition for review.

We note that the present case involves the validity of the constitution and statutes of this state. Thus, arguably, this case falls within the Supreme Court’s exclusive appellate jurisdiction, pursuant to Mo. Const, art. V, § 3 (as amended). Further, this case is one in which the trial judge was appointed by order of this Court under our supervisory powers, and we now take jurisdiction to review his findings irrespective of the procedural avenue which has been followed. In view of the need for judicial economy, we will not dismiss this_ cause merely to permit the 'plaintiffs to 'institute another action by some other means, particularly when both parties request review by this Court. We recognize and direct that it would be better that future disputes of this sort be presented in the first instance to the Supreme Court and this Court may consider them administratively under its supervisory powers.

In disposing of the merits of this case, it is necessary for this Court to determine whether the disputed rules comport with applicable constitutional or statutory provisions. Appellants have argued that Mo. Const. art. V, § 15.3 and § 478.240.2, RSMo 1978, authorize the enactment and implementation of Rule 100.1.2(3). We agree.

As previously stated, Local Rule 100.1.-2(3) is the amended provision which vests in the presiding judge the authority to more effectively administer the workings of the circuit court by assigning clerical personnel, establishing a centralized filing office, and transferring the supervision of the traffic control offices. These powers coincide with those set forth in Article V, § 15.3, which states that the presiding judge has “general administrative authority over the court and its divisions,” subject, of course, to the rule making authority of the circuit judges under Mo. Const, art. V, § 15.1. Similarly, § 478.240.2 states that the presiding judge has the prerogative “to assign any judicial or court personnel anywhere in the court.” These provisions clearly reflect the intent that the presiding judge is to have administrative control, again subject to the rule making authority of the circuit judges, not just over the business of the circuit judges, but over the entire court, including the divisions. Any other reading of these enactments runs counter to the primary objective sought to be achieved by the 1976 amendments to the Missouri Constitution.

The 1976 amendments to the judicial article create a three tier court system consisting of the Supreme Court, Courts of Appeals, and the Circuit Courts. Mo. Const, art. V, § 1 (1945, as amended 1976). Probate, magistrate and municipal courts are abolished as separate entities and incorporated into the circuit system as divisions of the circuit courts. Mo. Const, art. V, § 27.2(a), (b) (1945, as amended 1976). The constitutional amendments did not fashion associate circuit courts. Instead, the former magistrates were enveloped into the circuit system as associate circuit judges to be assigned to particular divisions of the circuit court. Therefore, when the constitution refers to the authority of the presiding judge over the circuit court and its divisions, it is unequivocally referring to tribunals of the associate circuit judges.

Plaintiffs counter that the disputed Local Rule 100.1.1(3) cannot be valid since other constitutional provisions allegedly preserve administrative authority in the associate circuit judges. For instance, plaintiffs cite Mo. Const, art. V, § 27.3, which reads, in part, that the “practice, procedure, filing fees and administration of causes heard by associate circuit judges within the jurisdiction of former magistrate and probate courts shall be and remain the same as in the court abolished.” This argument is flawed, however, by the fact that the quoted language has been lifted from a subsection which outlines the types of cases over which associate circuit judges can preside.

It is manifest that words used in constitutional provisions must be viewed in context. Buechner v. Bond, 650 S.W.2d 611, 613 (Mo. banc 1983). When Article V, § 27.3 is read in its entirety, it becomes evident that the framers were preserving for the associate circuit judges the judicial authority to adjudicate the rights of litigants, as had been done in the magistrate courts. We also note that the drafters of this subsection did not state that the associate circuit judges were to have the same administrative powers as the former magistrates. The provision refers, instead, to “administration of causes ” (emphasis added). Since all words used in constitutional provisions are presumed to have some purpose, State Highways & Transportation Com’n v. Director of Revenue, 672 S.W.2d 953, 955 (Mo. banc 1984); Buechner v. Bond, supra, we must interpret this language as a limitation on the powers of the associate circuit judges.

Furthermore, the plaintiffs’ reading of this constitutional subsection would place it directly in conflict with Article Y, § 15.3 which specifically bestows in the presiding judge general administrative authority over the divisions. Since we are to attempt to harmonize all provisions of the constitution, State ex. inf. Martin v. City of Independence, 518 S.W.2d 63, 66 (Mo.1974), the plaintiffs’ contentions in this regard must be rejected.

Likewise, we are not persuaded that Article V, § 27.10(a) and various statutory provisions preclude the presiding judge from reassigning division clerks and their deputies to the circuit clerk’s supervision. The state constitution states only that the “selection” of the clerk and deputies of the respective divisions shall continue in the same manner as had been the practice in the magistrate courts. Nothing in the constitution dictates that once selected, the clerks must remain under the supervision of the associate circuit judge.

Certainly, if the division clerks remained under the supervision of the associate circuit judges, the concept of a unified court system would be undermined. Because it is our view that each section of the judicial article must be construed as consistent with the concept of a unified court system, the term “selection” in this instance cannot be interpreted beyond its literal meaning. To the extent that there exist contrary statutory provisions, those statutes must give way to mandates of the constitution.

With respect to Local Rule 100.1.-1(4), however, we agree with the trial court that the rule is invalid. This is the provision which states that candidates for presiding judge must receive a second to their nomination from a majority of the circuit judges. This rule conflicts with that portion of the constitution which reads that:

The circuit and associate circuit judges in each circuit shall select by secret ballot a circuit judge from their number to serve as presiding judge.

Mo. Const, art. V, § 15.3 (1945, as amended 1976). The constitution could not be more explicit in requiring that both circuit and associate circuit judges participate in the election of a presiding judge. Because the amended local rule in its present form effectively circumvents this constitutional directive and is tantamount to a disenfranchisement, it is hereby declared invalid.

Although the holding of this opinion is to recognize that the associate circuit judges are constitutionally authorized to participate in the process for election of “a circuit judge ... to serve as presiding judge,” we emphasize that adoption of the local rules of court is the prerogative of the circuit judges of the circuit. Mo. Const, art. Y, § 15.1 makes this manifest:

The circuit judges of the circuit may make rules for the circuit not inconsistent with the rules of the supreme court.

Therefore, while the presiding judge possesses a substantial variety of powers, including those previously referred to in this opinion, local rules adopted by a majority of the circuit judges may direct how those powers are to be implemented by the presiding judge. Thus, by local rule, not inconsistent with the constitution, Supreme Court rule or statutes, the circuit court may provide, inter alia, for procedures for the docketing and handling of cases, types of court committees within the circuit, the administrative, budgetary, accounts, records and personnel workings of the entire circuit court and its divisions, including the associate circuit judges. It follows, of course, that the presiding judge in exercising the administrative powers must abide by the local court rules as adopted by the circuit judges.

The judgment is affirmed in part and reversed in part.

RENDLEN, C.J., and HIGGINS, GUNN, BILLINGS, BLACKMAR and DONNELLY, JJ., concur.

WELLIVER, J., concurs in part and dissents in part in separate opinion filed.

WELLIVER, Justice,

concurring in part and dissenting in part.

I concur in all of the principal opinion except that part thereof that holds Local Court Rule 100.1.1(4) to be invalid by reason of being contrary to Mo. Const, art. V, § 15.3. Rule 100.1.1(4) is neither invalid nor unconstitutional on its face, regardless of its potential for being unconstitutional in its application.

I cannot agree with the underlying premise of the majority opinion that the power of the circuit judges to promulgate and adopt administrative rules will in itself solve the problems plaguing the Twenty-First Judicial Circuit. Rulemaking power without the right to select the officer to administer the rules may be no power at all. Striking down Local Court Rule 100.1.-1(4) leaves a situation which has the same potential for political maneuvering, factionalism, obstruction, and administrative breakdown that has plagued the Twenty-First Judicial Circuit during the past two or more years.

The principal opinion brings into sharp focus the fact that § 15.3 , appears contrary to and out of step with the unified court system contemplated and established by the other provisions of Art. V. The revised judicial article adopted in 1976 contemplates a judiciary integrated from top to bottom for the purpose of efficient and economical use of judicial personnel and resources. The method for accomplishing this purpose is as clear as any business or military organizational chart. General supervision and control over the entire judiciary is placed in the Supreme Court. Mo. Const, art. V, § 4. Each court of appeals exercises general supervisory control over the circuit courts within their statutory district. Id. The circuit courts exercise certain supervisory controls over the divisions within their statutory districts. Art. V, § 15. All exercise their administrative functions through their chief administrative officer, who in all other instances is elected by the majority vote of the judges serving on the court in question.

Section 15.3, read as the majority reads it, permits the associate circuit judges together with any dissident circuit judges, to pass over any judge or judges they deem unacceptable and to elect the presiding judge of their choice. This is control from the bottom up and not from the top down. It is in direct contradiction to the manifest intent of Art. V as a whole. This destroys the ability of the majority of the circuit judges acting through their chief administrative officer to exercise supervisory control over the component divisions of the circuit court.

Clearly, this contradiction in Art. Y merits future reconsideration by the voters, a process which may well take several years. In the meantime, having identified the contradiction, our courts have the duty to harmonize the existing sections of the Constitution, if such can be done. Staley v. Missouri Director of Revenue, 623 S.W.2d 246 (Mo. banc 1981).

Read, in harmony with the other sections of Art. V, § 15.3 does no more than grant to the associate circuit judges the right and power to participate and have input in the selection of the presiding judge of the circuit court. This is certainly true so long as two or more circuit judges are nominated by the circuit judges in accordance with the rule. I am aware that if the circuit judges should nominate only a single candidate, it could be argued that they had, in effect, deprived the associate circuit judges of participation in the election process. This question is not now before us.

Nothing on the face of Rule 100.1.1(4) appears to contradict the general intent and purpose of Art. V or the specific wording of § 15.3. Nothing in § 15.3 requires that associate judges have equal rights with circuit judges to nominate who from among the circuit judges shall be considered for election as presiding judge. Rule 100.1.1(4) could not have been more artfully drafted to harmonize § 15.3 with the remainder of Art. V.

This is no time for half solutions. Rule 100.1.1(4) as adopted by the circuit judges merits our approval.

      . Local Rule 100.1.1(4): (Election) At the election meeting each Circuit Judge and each Associate Circuit Judge shall be entitled to offer one Circuit Judge for Presiding Judge of the Circuit. However, no candidate shall be deemed nominated until his or her nomination is seconded by a majority of the Circuit Judges present and voting at said meeting.

      . Local Rule 100.1.2(3): (Duties of Presiding Judge) The Presiding Judge shall have the authority to assign clerical personnel, not including any chief division clerk or any clerk appointed by the Judge of the Probate Division, to the Circuit Clerk, and the Circuit Clerk shall establish an office or offices at appropriate locations in the Courts Building to maintain and have responsibility for all court files, except those assigned to the Probate Division, and operate the control offices established under Rule 63 herein for the Associate Circuit Divisions.

      . However, this procedure is not intended to impinge upon or preclude the application of regular judicial processes in matters of this kind.

      . This Court recognizes, with appreciation, the splendid handling of a difficult case by the Honorable Stephen R. Pratt, who was assigned the task by this Court of acting as special judge in this controversy involving his peers.

      . Section 15.3 read as follows: "The circuit and associate circuit judges in each circuit shall select by secret ballot a circuit judge from their number to serve as presiding judge. The presiding judge shall have general administrative authority over the court and its divisions.”

      . It is noteworthy that in harmonizing the sections, the circuit judges have reserved to the associate circuit judges the ability to pass over one or more of those judges nominated and presented for their consideration, a power now compatible with accepted Missouri judicial practice.


author: MELVYN W. WIESMAN, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Mikel Leon FRANKS, Defendant-Appellant.
    No. 46724.
    Missouri Court of Appeals, Eastern District, Division Eight.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.
    Application to Transfer Denied April 2, 1985.

      William Barvick, Jefferson City, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   MELVYN W. WIESMAN, Special Judge.

Defendant, Mikel Leon Franks, appeals from a conviction for burglary in the second degree and stealing without consent, both class C felonies. He was sentenced to a term of seven years imprisonment on each charge, to be served consecutively. We affirm.

On January 1, 1982 at about 6:00 p.m. Harold and Betty Schaffer left their residence in a farmhouse located near Taos in Cole County to visit a son in Holts Summit. When they left, the back door was closed but unlocked. Another son, who lived in the house, was away, hunting. Neither gave permission for anyone to enter the house. When they left, the house and its contents were in normal condition. When they returned around 11:30 p.m., the back door was still closed and unlocked. Inside, the premises were in abnormal disarray. A china closet door had been ripped off. All of the sheets and pillow cases had been pulled out. A madonna had its head knocked off. A puppy belonging to their son was dead. Model cars, pictures and trophies of their son were broken. Other damages also were observed. Numerous items of property were missing, including a sweeper having a value of $700, their son’s TV set, a scanner, a pocket watch, several items of jewelry, clothing and other items of personal property. Subsequently, items taken from the residence were found in the possession of Michael Powell, who was charged and tried in the joint trial with the defendant. Items were also found in the general vicinity of defendant’s residence.

On appeal, defendant contends the trial court erred: (1) in trying defendant for stealing when it lacked jurisdiction because the information charging the crime was fatally defective; (2) in permitting the state to introduce preliminary hearing testimony of a witness who refused to testify at the trial; (3) in permitting the state to introduce evidence of another crime; (4) in not admitting into evidence certain of the defendant’s exhibits; and (5) in not submitting the issue of punishment to the jury when the court failed to make a specific finding that defendant was a prior persistent offender before the cause was submitted to the jury.

Defendant first challenges the sufficiency of the information contending it was “fatally defective” because the description of the stolen property as “personal property” was inadequate to describe the property with sufficient definiteness to bar a subsequent prosecution for the same offense and to inform the defendant of the charge against him. Defendant raises the argument for the first time on appeal. We consider defendant’s argument under plain error. Rule 30.20.

Defendant has cited us to State v. Jeffords, 64 S.W.2d 241 (Mo.1933) in which it was held that an information charging the accused with the crime of larceny by stealing “merchandise” was not sufficient to bar a subsequent prosecution and, therefore, was not sufficient to support the judgment. However, in State v. Rose, 428 S.W.2d 737 (Mo.1968), an information which charged stealing from a jewelry store of “goods, wares and merchandise, personal property of ...” in conjunction with a burglary was found sufficient. Although the court said it was preferable to state more specifically a description of the property claimed to be stolen, a defendant may request a bill of particulars to inform himself of the desired details. Rule 23.04. The court further noted that provisions for a bill of particulars were not adopted until 1952. State v. Rose, 428 S.W.2d at 741. This court, further, has held that an information charging stealing from a commercial establishment of “goods, wares, chattels, and personal property” was sufficient and “[defendant's apprehension that future prosecution might occur could have been allayed by his seeking a bill of particulars.” State v. Ahern, 546 S.W.2d 20, 21 (Mo.App.1976).

In the present case where the alleged stealing was from individuals, as compared to commercial establishments, and where the information is otherwise in conformity with MACH-CR 24.02.1, the description of the stolen property as “personal property” is sufficient to vest the court with jurisdiction. The defendant waived any right to obtain additional desired details by his failure to request a bill of particulars. State v. Frankum, 425 S.W.2d 183, 189 (Mo.1968).

Defendant next alleges the trial court erred in permitting the state to introduce the preliminary hearing testimony of Marcus Branch, with whom defendant is alleged to have committed the offenses charged. At trial the state called Branch as a witness. He refused to answer on the grounds of self-incrimination. After a hearing out of the presence of the jury, the court determined that Branch was unavailable to the state as a witness as a result of his claim of that privilege. The state then offered into evidence the transcript of the preliminary hearing testimony of Branch. Over objections of defendant that the admission of the transcript would violate defendant’s right of confrontation under the Sixth Amendment to the United States Constitution, the trial court admitted the transcript.

In State v. Holt, 592 S.W.2d 759 (Mo. banc 1980), the court held that a transcript of preliminary hearing testimony of a witness who exercised her fifth amendment privilege against self-incrimination and refused to testify was admissible. Contrary to the allegations of the defendant in that case that the admissibility violated the defendant’s right to confront and cross-examine the witness in violation of the Sixth and Fourteenth Amendments to the United States Constitution, the court found that “[a]n exception to the confrontation requirement exists where a witness is unavailable and has given testimony which was subject to cross-examination at previous judicial proceedings against the same defendant.” State v. Holt, 592 S.W.2d at 765. See also, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). A witness is unavailable if he claims his privilege against self-incrimination. State v. Phillips, 511 S.W.2d 841, 847 (Mo.1974). In the instant case, the trial court, after a hearing, determined Branch was not available. An examination of the preliminary hearing record reflects further that the defendant was represented by counsel and was granted not only a reasonable opportunity to cross-examine Branch but did conduct an extensive cross-examination. This court, therefore, finds no violation of defendant’s Sixth or Fourteenth Amendment rights by the use of the preliminary hearing transcript. This allegation of error is rejected.

Defendant further claims that State v. Holt, supra, is not applicable to the present case since, in Holt, there was ample testimony upon which that defendant could have been convicted independent of the preliminary hearing testimony. The availability of other evidence was not an issue in Holt, and we hold that the lack of other confirmatory evidence is not a significant factor barring use by the state of testimony.

Defendant further alleges that the use of the preliminary hearing transcript of Branch’s testimony violates rights afforded the defendant under Article I, Sections 18(a) and 18(b) of the Missouri Constitution. The defendant did not raise this ground for exclusion of the transcript in the trial court at the time it was offered. He raised it for the first time in his motion for new trial. To preserve an alleged error for review on appeal an adequate specific objection must be made at the earliest possible opportunity in the progress of the trial. State v. Simmons, 500 S.W.2d 325, 328 (Mo.App.1973). “A point on appeal must be based upon the theory voiced in the objection at trial and a defendant cannot expand or change on appeal the objection as made.” State v. Cannady, 660 S.W.2d 33, 37 (Mo.App.1983). The defendant did not raise these grounds at the earliest possible opportunity and has attempted to expand and change the ground initially alleged at trial. Further, defendant has failed to argue these points in his brief and has failed to cite authority in support of the points. Where an appellant claims error, “[his] failure to pursue the point by argument and cite authority for its support constituted abandonment or waiver of the point on appeal.” State v. Harris, 670 S.W.2d 73, 81 (Mo.App.1984). For all the foregoing reasons, the defendant failed to preserve the alleged errors and waived them.

Within those portions of the preliminary hearing transcript of the testimony of Marcus Branch read to the jury, the defendant also complains the trial court erred in permitting evidence of other crimes. In his brief defendant sets forth the allegedly erroneous testimony. Paraphrased, the testimony reveals that at some time after 6:00 p.m. on January 1, 1982, the defendant, Marcus Branch and Michael Powell were in a car driven by the defendant and were headed to the home of Branch’s grandparents to “hit a safe and get some jewelry plus the guns, if we can find them.” When they discovered that Branch’s grandparents were home that evening, they left that location and went to the Schaffer residence, where they committed the acts for which defendant was charged. Over the objection of defendant, the trial court admitted the testimony on the grounds it was probative of the issue of intent.

As a general rule, evidence of a crime other than the crime charged is inadmissible. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (1955). However, “evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.” State v. Reese, id. “Equally well recognized, in our state, is the parallel exception which permits proof of another crime, if the other crime is so linked together in point of time and circumstances with the crime charged that one cannot be fully shown without proving the other.” State v. King, 588 S.W.2d 147, 150 (Mo.App.1979). In the instant case, the trial court specifically ruled that the evidence was probative of intent. We cannot find any error in that ruling. The evidence also was necessary to establish a complete and coherent picture of the events leading to the commission of the crimes.

Defendant next alleges the trial court erred in refusing to admit certain of his tendered exhibits, which were letters of Marcus Branch written subsequent to the preliminary hearing and his written statement in the form of a motion. Defendant alleges these exhibits contained statements inconsistent with Branch’s preliminary hearing testimony. He further alleges the statements were relevant and material evidence of motive of Branch to falsely implicate defendant and the failure to admit them invaded the province of the jury and deprived defendant of his right to impeach and cross-examine the witness. At trial, the court found that the letters were letters of Marcus Branch and permitted their introduction into evidence subject to its ruling upon the submission of portions of the letters to the jury. Defendant attempted to use the statements to impeach Branch’s prior preliminary hearing testimony. The state objected on the ground the letters contained nothing inconsistent with the pri- or testimonial transcript of Branch. The court concurred in that allegation specifically finding no inconsistency.

The relevancy of the evidence to establish motive of Branch to falsely implicate defendant does not make the exhibit admissible where that evidence is ex-cludable under other evidentiary rules. It is not error to exclude evidence inadmissible under a rule of evidence. The extra-judicial statements by Branch in the exhibits clearly were hearsay. State v. Ivicsics, 604 S.W.2d 773 (Mo.App.1980). The trial court implicitly found so in its exclusionary ruling. The issue, then, is whether the statements fall within an exception to the hearsay rule. Both the prosecuting attorney and the court presumed the exhibits were being offered to impeach the statements of Branch as prior inconsistent statements. Both said so on the record. Defendant did nothing to indicate the exhibits were being offered under any other exceptions. His allegation of error is consistent with that position. Prior statements may be used to impeach the credibility of a witness, but this can be done only if the judge is satisfied that the prior statements, in fact, are inconsistent. State v. Cooksey, 643 S.W.2d 632, 633 (Mo.App.1982). Absent the threshold showing of an inconsistency between the testimony and the statements contained within the proffered exhibits, use of the exhibits to impeach is questionable. State v. Jones, 629 S.W.2d 589, 591 (Mo.App.1981); State v. Ivicsics, 604 S.W.2d at 773.

Usually, one seeking to impeach a non-party witness must lay a foundation by asking the witness “whether he made the prior statement, quoting it and the precise circumstances under which it is made. If the witness admits making the statement, he stands impeached. If the witness denies or equivocates about having made the statement, the examiner may then introduce evidence showing the witness did make the prior inconsistent statement.” Englebert v. Flanders, 670 S.W.2d 19, 21 (Mo.App.1984); Aboussie v. McBroom, 421 S.W.2d 805 (Mo.App.1967). Where, however, the testimony to be impeached is prior preliminary hearing testimony and the impeaching statements were made subsequent to the preliminary hearing, the party seeking to introduce the subsequent statements as prior inconsistent statements for the purposes of impeachment need not lay that foundation. State v. Ivicsics, 604 S.W.2d at 780. However, even that exception does not abrogate the necessity that the party seeking to introduce the allegedly inconsistent statement direct the court to the portion of the witness’s testimony the offering party seeks to impeach. Defendant did not direct either the trial court or this court to the specific portions of Branch’s preliminary hearing testimony he sought to impeach. Absent a clear abuse of discretion an appellate court will not fault the trial court’s rulings limiting admission of evidence. State v. Jones, 629 S.W.2d at 591. We have examined the preliminary hearing transcript and the proffered exhibits and find no error in the ruling of the trial court.

Finally, defendant alleges the trial court erred in not submitting the issue of punishment to the jury because it failed to make a specific finding that the defendant was a prior or a persistent offender before the case was submitted to the jury. The information charging the defendant alleged he was a “prior offender and a persistent offender.” Prior to the close of the state’s case, evidence was presented of prior felony convictions of defendant. In response to that evidence the following dialogue occurred:

Mr. Aulgur (Prosecuting Attorney): ... I think the court has sufficient grounds to find that he is at least a prior offender. Not that I am waiving that he is also a persistent offender, but that a hearing could be held sometime later, if we cross that bridge, assuming he is convicted, as to whether or not he is actually a persistent offender.
THE COURT: Yes, I believe that would be true. Certainly there’s sufficient evidence, here, and I will admit them into evidence. It shows at least on some prior occasion there has been a plea of guilty and a sentence against Mikel Franks. They will be admitted.

The court, clearly, found defendant was, at least, a prior offender. That finding was made prior to submission of the cause to the jury, all in accordance with Section 558.021, RSMo., Supp.1981. Defendant’s allegation of error is without merit.

The judgmént is affirmed.

PUDLOWSKI, P.J., and WILLIAM E. TURNAGE, Special Judge, concur.