text:
    STATE of Missouri, ex rel. CITY OF SPRINGFIELD, Missouri, Relator, v. The Honorable Clifford J. CROUCH, Circuit Judge, Respondent.
    No. 13803.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 22, 1985.
    Motion for Rehearing and Transfer to Supreme Court Denied March 15, 1985.
    Application to Transfer Denied April 30, 1985.

      Howard C. Wright, Jr., City Atty., Dennis E. Budd, Asst. City Atty., Springfield, for relator.
    Douglas W. Greene III, Springfield, for respondent.
   PREWITT, Chief Judge.

Terry W. Ellerman, formerly a fireman employed by relator, filed a petition in the circuit court of Christian County seeking review of a decision of the Springfield Personnel Board which affirmed his dismissal for “conduct unbecoming an officer or employee of the city.” Apparently Ellerman had been convicted of manufacturing marijuana. Relator filed a motion to dismiss that petition on two grounds; (1) improper venue, and (2) because Ellerman had later filed another petition for review in the Circuit Court of Greene County. When the motion was overruled, relator filed a petition for writ of prohibition here. We issued a preliminary order.

We first discuss relator’s point that venue in Christian County was improper. Relator contends that since it is a municipal corporation located entirely within Greene County, under § 508.050, RSMo 1978, suit against it can only be brought in Greene County. Respondent determined that § 536.110.3, RSMo 1978, controls and that venue was proper in Christian County where Ellerman resides. Those sections are set forth below.

Section 536.110.3 may indicate that it contemplates only appeals from state agencies, as distinguished from agencies of local governments, but except for venue relator acknowledges that the remaining provisions of Chapter 536, The Administrative Procedure and Review Act, apply. Missouri eases so state. The Administrative Procedure and Review Act applies to “contested cases” in municipal agencies. Hunter v. Madden, 565 S.W.2d 456, 458-459 (Mo.App.1978) (citing State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 356 (Mo. banc 1958)). See also Davis, The Missouri Administrative Procedure Act And the Cities, 35 J.Mo.B., 433, 434 (1979) (“Missouri appears to be unique in making its APA directly applicable to municipalities”).

The dispute heard here by the personnel board, being between a discharged employee and the employer, is a “contested case” as that term is defined in § 586.010(2), RSMo 1978. Mills v. Federal Soldiers Home, 549 S.W.2d 862, 865 (Mo. banc 1977). See also Citro v. City of Lee’s Summit, 658 S.W.2d 86, 87 (Mo.App.1983) (hearing before Personnel Hearing Board on two five-day suspensions, a contested case).

Of course, the provisions of a specific statute prevail over a general one. State ex rel. Fort Zumwalt School Dist. v. Dickherber, 576 S.W.2d 532, 536 (Mo. banc 1979). Following that principle and the statement in § 536.100, providing for judicial review under Chapter 536 “unless some other provision for judicial review is provided by statute”, cases have said that where venue for review of decisions of certain agencies has been specifically provided for, § 536.110.3 does not apply to them. Examples of this are shown in State ex rel. State Tax Comm’n v. Luten, 459 S.W.2d 375 (Mo. banc 1970); State ex rel. State Tax Comm’n v. Walsh, 315 S.W.2d 830, 835 (Mo. banc 1958); Brogoto v. Wiggins, 458 S.W.2d 317, 319 (Mo.1970); and Tuffli v. Board of Ed., 603 S.W.2d 77 (Mo.App.1980). See also State ex rel. Ballard v. Luten, 555 S.W.2d 855, 858 (Mo.App.1977) (The provisions of Chapter 536 with respect to appeal do not apply to agencies with review provisions provided by special statute).

As relator contends, § 508.050 “recognizes and protects the local interest of a municipal corporation by requiring that all suits against the municipal corporation be brought % the county in which the municipal corporation is situated.’ This avoids the necessity of local government officials defending suits in courts across the state.” State ex rel. Milham v. Rickhoff, 633 S.W.2d 733, 735 (Mo. banc 1982).

Were this other than a petition for judicial review of a contested case, then § 508.050 might apply. See State ex rel. Wasson v. Schroeder, 646 S.W.2d 105 (Mo. banc 1983); State ex rel. State Bd. of Registration for the Healing Arts v. Elliott, 387 S.W.2d 489, 492-493 (Mo. banc 1965); State ex rel. State Tax Comm’n v. Walsh, supra, 315 S.W.2d. at 835.

Section 536.110.3 applies to a contested case “unless some other provision for judicial review is provided by statute”. § 536.100, RSMo 1978. The latter is set out in full below. Rule 100.01 states: “The provisions of sections 536.100 through 536.150, RSMo, shall govern procedure in circuit courts for judicial review of actions of administrative agencies unless the statute governing a particular agency contains different provisions for such review.” We find neither of the stated exceptions. Section 508.050 is not “some other provision for judicial review” or a statute governing relator containing different provisions for judicial review. It is a general venue statute for suits brought against a municipal corporation.

Provisions for judicial review of contested administrative cases are more specific than the general venue statutes. Section 536.110.3 is a specific provision for judicial review of contested cases proceeding under Chapter 536, including those against a municipal corporation. As between the two sections in question, § 586.110.3 is the specific and controlling statute. Section 536.-110 is specific as to judicial review, but may be the more general statute where there is a special venue provision governing review of decisions from a particular agency. Otherwise, § 536.110.3 controls venue when there is judicial review of a contested case. Venue in Christian County was proper. This point is denied.

Relator’s remaining point contends that venue was conclusively established in Greene County because Ellerman alleged in the petition filed there, and relator admitted, that venue was proper. In this point relator also states that the motion should have been sustained under Rule 55.27(a)(10) because there was “another action pending between the same parties for the same cause in this state”.

Ellerman filed his petition in Christian County on October 27, 1983. On November 2, 1983, a similar petition was filed in the Circuit Court of Greene County. Each alleged that the court in which they were filed “has jurisdiction and proper venue pursuant to § 536.110”. In the Greene County case relator admitted that venue was proper. The record indicates that the petition filed in Christian County was served on relator before the petition in Greene County was filed.

Ellerman’s alleging that venue was proper in Greene County and relator agreeing, does not mean that the Christian County Circuit Court did not have jurisdiction to proceed. That venue is proper in one county does not establish that venue could not be proper in another county. Often a plaintiff has an option of two or more counties in which to file. However, as discussed under the previous point, here the Greene County Circuit Court was not a proper place for the petition to be filed.

State ex rel. Kincannon v. Schoenlaub, 521 S.W.2d 391 (Mo. banc 1975), held that where two suits are pending over the same controversy between the parties the first petition filed invokes the jurisdiction of the court where it is filed and that court had jurisdiction to proceed. It stated that previously the general rule was “that where two actions involving the same subject matter are brought between the same parties in courts of concurrent jurisdiction, the Court in which service of process is first obtained acquires exclusive jurisdiction of the cause, and may dispose of the whole controversy without the interference of any other court.” 521 S.W.2d at 393. The opinion stated that the cases supporting that general rule “which was applicable prior to adoption of amended Rule 53.01 [effective December 1, 1972] should no longer be followed.” 521 S.W.2d at 395.

Rule 53.01 remains the same, but cases subsequent to Kincannon have cited it for the prior rule. See State ex rel. General Dynamics v. Luten, 566 S.W.2d 452, 458 (Mo. banc 1978); State ex rel. Nesbit v. Lasky, 546 S.W.2d 51, 53 (Mo.App.1977). See also State ex rel. J.E. Dunn, Jr. & Associates v. Schoenlaub, 668 S.W.2d 72, 74 (Mo. banc 1984) (following State ex rel. General Dynamics v. Luten, supra).

Although we favor the rule adopted in State ex rel. Kincannon, as it prevents avoidance of service from being critical, we need not decide what rule should be applied here. Nor do we need to decide if the rules discussed require a dismissal, where, as here, the same party files both petitions. Filing and service of the Christian County petition took place before the Greene County filing. If there is a defense applicable because of the dual filings, it is to the Greene County proceeding. The Christian County Circuit Court had jurisdiction and filing the petition in Greene County did not oust it from that jurisdiction. The second point is denied.

Respondent had jurisdiction to proceed. The preliminary order is quashed.

HOGAN, JJ., concur. P.J., and MAUS and CROW,

      . § 508.050 states:
      Suits against municipal corporations as defendant or codefendant shall be commenced only in the county in which the municipal corporation is situated, or if the municipal corporation is situated in more than one county, then suits against the municipal corporation shall be commenced only in that county wherein the seat of government of the municipal corporation is situated; except that suits may be brought against a city containing more than four hundred thousand inhabitants in any county in which any part of the city is situated.
      § 536.110.3, a part of the Missouri Administrative Procedure and Review Act, states:
      The venue of such cases shall, at the option of the plaintiff, be in the circuit court of Cole county or in the county of the plaintiff or of one of the plaintiff’s residence or if any plaintiff is a corporation, domestic or foreign, having a registered office or business office in this state, in the county of such registered office or business office. The court in its discretion may permit other interested persons to intervene.

      . Section 536.100, RSMo 1978 provides:
      Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review thereof, as provided in sections 536.100 to 536.140, unless some other provision for judicial review is provided by statute; provided, however, that nothing in this chapter contained shall prevent any person from attacking any void order of an agency at any time or in any manner that would be proper in the absence of this section. Unreasonable delay on the part of any agency in deciding any contested case shall be grounds for an order of the court either compelling action by the agency or removing the case to the court for decision.

      . It is unnecessary for us to decide if a petition for judicial review can be a “suit” as contemplated by § 508.050. See State ex rel. Union Elec. Co. v. Scott, 470 S.W.2d 1, 3 (Mo.App.1971).

      . We do not decide whether, by relator agreeing to the venue, jurisdiction could be conferred on the Greene County Circuit Court absent it having venue under § 536.110.3. See Health Enterprises of America v. Department of Social Services, 668 S.W.2d 185 (Mo.App.1984); Gaslight Real Estate v. Labor & Indus. Relations Comm’n, 604 S.W.2d 818 (Mo.App.1980); cf. State ex rel. Union Elec. Co. v. Scott, supra, 470 S.W.2d at 3.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Michael ANDERSON, Appellant.
    No. WD35347.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied April 30, 1985.

      Robert G. Duncan, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Michael H. Finkelstein, Asst. Atty. Gen., for respondent.
    Before KENNEDY, J.P., and DIXON and CLARK, JJ.
   DIXON, Judge.

Anderson was convicted of first degree murder, Section 565.003 RSMo 1978, committed in the course of an attempted robbery, and was sentenced to life imprisonment. He asserts the court erred in (1) overruling his motion to dismiss because of alleged statutory and Sixth Amendment speedy trial violations; (2) admitting, over objection, testimony about another crime; and (3) denying his requests for a mistrial because of portions of the state’s argument. Affirmed.

On the evening of February 24, 1981, Anderson, Brower, and Wakefield attempted to rob a service station at 12th and Van Brunt in Kansas City. Approximately two weeks earlier, Anderson, Wakefield, and Tricarico had attempted to rob the same station, with Wakefield wielding a gun, but when the attendant pulled a gun, they fled. Around February 24, Anderson approached Wakefield about again attempting to rob the same station. At trial, Wakefield testified, “[H]e asked me if I wanted to go rob the place and I told him no I didn’t want to rob it, I attempted it once and they tried to pull a gun on me ... I just told him I wasn’t going down there to rob the place because I didn’t want to have to shoot nobody to take their money_” Wake-field agreed to drive the car on the 24th but did not otherwise participate in the robbery attempt. Anderson and Brower, both wearing ski masks and with Anderson carrying a .32 caliber gun owned by Wake-field and Tricarico, approached the station building. The attendant, Walter Messer, was inside and the door was locked. Shots were fired from the .32, the three men escaped, and passersby, who finally managed to break into the station, found Mes-ser suffering from a fatal gunshot wound.

Cynthia Salyer, who was driving past the station, stated she saw two men wearing ski masks, but was unable to identify them. Debbie Alexander, one of the girls who lived with Wakefield, Brower, and Tricari-co, testified that, on February 25, 1981, a friend of Wakefield’s, Carrie Richardson, was at their home and “was coming down the stairs and she asked Mike [Anderson] if he had killed the guy, and Mike made the remark ‘Hell, I don’t know. I didn’t stick around to find out.’ ” Wakefield testified that, one week after the murder, he heard Anderson admit he had shot Messer. Wilford Keeling, who, in March, 1981, saw Anderson at a neighbor’s house, testified that he heard Anderson make a statement that Anderson “had gotten off on what he had done because of the fact that they didn’t find the weapon that did the crime, or that they couldn’t have anybody testify against him because the only witness that was allowed to testify was dead, because he shot him.” David Weiss, incarcerated in the Jackson County Jail, as was Anderson, in September, 1981, testified Anderson “had told me he was in there for shooting a man, for murder ... He told me he gave the gun to a guy named Tommy and told him to sell it and that he wished he hadn’t because he had wished he throwed it in the river to get rid of it, of the evidence.” The weapon was recovered by the police from a third party and the ballistics expert identified it as the weapon that killed Messer.

Anderson was originally arraigned for Messer’s murder April 9, 1981, but the indictment was dismissed October 26, 1981, for a “current lack of evidence sufficient to prove guilt.” The evidence adduced at trial was available at the time of the dismissal. Wakefield’s statement was given March 11, 1981, the passerby’s testimony was given the night of the killing, Debbie Alexander gave her statement October 15, 1981, and David Weiss gave a statement October 12, 1981. Keeling came forward on December 13, 1982, and only his testimony was unavailable at the time of the dismissal.

On August 20, 1981, while incarcerated, and pending resolution of the Messer case, Anderson was charged with sodomy. On this charge, he was later tried and acquitted. The record before this court does not reflect the time involved in the actual trial. From October 27, 1981, to early April 1982, Anderson was not in custody. On April 16, 1982, he was indicted for another, unrelated murder. The case was tried, resulting in a hung jury. The charge was later dismissed on June 30, 1983.

Anderson was re-indicted for the Messer murder on January 21, 1983, and was arraigned on January 31. He requested three continuances (continued March 7 to April 4, May 31 to July 5, and July 18 to August 15), which were granted. On August 15, 1983, Anderson filed a motion to dismiss, asserting statutory and eonstitu-tional speedy trial violations, which was denied. Trial began August 22, 1983. During argument, the assistant prosecutor referred to Carrie Richardson as Anderson’s girlfriend and later stated that if Anderson were not guilty beyond a reasonable doubt, no one in Jackson County had ever been guilty beyond a reasonable doubt. Both statements drew requests for a mistrial, which were denied. The trial court also instructed the jury to disregard the statement that Carrie Richardson was Anderson’s girlfriend.

Anderson first asserts the court erred in denying his motion to dismiss because of an alleged denial of his right to a speedy trial, in derogation of Section 545.780 RSMo 1978 and the Sixth Amendment. The record demonstrates a delay of twenty-seven months from the dismissal to the re-indictment.

Anderson has divided his argument on this point into two basic subsections. He first asserts a violation of his right to a speedy trial because more than 180 days elapsed between his January 31, 1983, arraignment and August 22,1983, the date of trial. Of these 203 days, 92 are excludable due to continuances granted by the trial court pursuant to Anderson’s requests. Section 545.780.2; State v. Britt, 651 S.W.2d 566 (Mo.App.1983); State v. Reed, 640 S.W.2d 188 (Mo.App.1982). Thus, as to this time period, Anderson was brought to trial well within the 180 day limit.

Anderson also asserts his motion should have been sustained because of the 27-month delay between the dismissal of the first indictment and the second indictment, in violation of Section 545.780.5, which states, in pertinent part:

If the charge was dismissed by the court without prejudice and thereafter a charge is filed against the defendant for the same offense or an offense required to be joined with that offense, the time elapsed between the date the original charge was dismissed to the date the subsequent charge was filed shall be in-eluded for purposes of computation of the allowable time to arraign the defendant and commence the trial.

The Eastern District, in a comprehensive analysis, discussed the statute’s clear mandate. State v. Lawson, 630 S.W.2d 185 (Mo.App.1982). After holding a nolle pro-sequi is the equivalent of a dismissal without prejudice, the Lawson court stated, “[T]he quoted language in Section 545.-780.5 therefore should be applicable to this situation and the time should start at the time of the filing of the nolle prosequi. To hold otherwise would make the statute a nullity. To hold otherwise would permit the state to file a nolle prosequi and start it all over again time after time whenever the 180 day limit approached.” Lawson, 630 S.W.2d at 189. In State v. Mauldin, 669 S.W.2d 58, 59-60 (Mo.App.1984), in the analogous situation of a mistrial and subsequent retrial, wherein a delay of over the sixty-day period mandated by the statute occurred, the court held a dismissal was required. The court noted that no part of the delay was attributable to the defendant and that the statute created a duty on the state’s part to re-try the defendant within sixty days.

Based on the authority cited, the defendant’s position would have to be sustained. The state, however, cites State v. Collins, 669 S.W.2d 933 (Mo. banc 1984), asserting the rule of that case requires affirmance. Collins undoubtedly abolished any viable claim by a defendant of trial court error for refusing to enforce the provisions of the speedy trial act by dismissal. The Collins court said, “Dismissal of an indictment or information is purely a matter for the discretion of the trial judge. One who would challenge this exercise of discretion must meet the very substantial burden of demonstrating an abuse of discretion.” Id. at 935. Further, the Collins court stated, “A trial judge, for example, might decide in his discretion that dismissal should not be ordered, even though the delays are solely occasioned by the state and so detailed findings would not be necessary.” Id.

Collins, thus, overrules State v. Richmond, 611 S.W.2d 351 (Mo.App.1980), which, in a thoughtful and thorough analysis, held that the trial judge’s discretion was narrow and subject to review in light of the detailed findings required by the statute. Id. at 355-356.

Collins gives no guidance for a review for “abuse of discretion,” nor suggests a basis for such a review, given the ruling that findings are unnecessary.

Collins seems to make the discretion of the trial court subject only to limited judicial review. Ordinarily, such discretion, with limited review, is a discretion based upon the trial court’s perception of court room incidents, which cannot be evaluated upon the transcript alone. Stapleton v. Griewe, 602 S.W.2d 810 (Mo.App.1980).

The trial court was aware, when the motion was ruled, that the delay between the indictments was 27 months. The court was aware of the other charges of sodomy and murder. The state responded to the defendant’s motion by stating that witness Weiss had been “unavailable.” The defendant did not contest that statement, despite earlier statements that “the evidence was available” to the state. Defense counsel, however, conceded that the state’s agreement with Wakefield was of recent origin, and, of course, absent his plea bargain in exchange for his testimony, he would have been unavailable to the state. There is no showing that any of the delay was attributable to the defendant. The trial court under Collins had a virtually unlimited discretion to deny the dismissal, despite lack of any delay attributable to the defendant. The defendant has offered nothing to show an abuse of discretion except the delay occasioned by the state. Collins binds this court, and the point is denied.

Anderson also asserts that his speedy trial rights under the Sixth Amendment were violated. Under the principle enunciated in United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the period between the dismissal of the first indictment and defendant’s rear-raignment on the same charges does not count in determining Sixth Amendment speedy trial violations. Therefore, the only periods at issue are those during which Anderson was actually under indictment for Messer’s murder, April 9, 1981 — October 26, 1981, and January 31, 1983, — August 22, 1983.

In Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2191-94, 33 L.Ed.2d 101 (1972), the court stated the basic principles to be weighed and balanced in this situation: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the resulting prejudice to the defendant. Missouri courts have followed this procedure in determining whether a Sixth Amendment speedy trial violation has occurred, see, e.g., State v. Buckles, 636 S.W.2d 914, 919 (Mo. banc 1982), and have further refined the question of resulting prejudice to the defendant by considering (1) the prevention of undue or oppressive incarceration; (2) the minimization of anxiety; and (3) the limitation of the defendant’s ability to defend himself. State v. Haddix, 566 S.W.2d 266, 274 (Mo.App.1978). If the delay is due to the prosecutor’s deliberate attempt to gain an advantage, State v. Holmes, 643 S.W.2d 282 (Mo.App.1982), on balance it will be counted heavily against the state.

Here, the applicable delay periods totalled some 13 months. Of the second period of 7 months, Anderson’s requests for continuances accounted for almost half of the delay. There is an absolute dearth of information as to the reasons for delay in the first period. Anderson’s ability to defend himself was not limited by the delay, for, presumably, discovery would have disclosed the witnesses. Anderson was not incarcerated all of the time, and there is no showing that the delay hampered his defense. Given the several charges against Anderson, any anxiety could not be attributed to this charge. Thus, under the Barker test, as interpreted by the Missouri courts, Anderson’s Sixth Amendment right to a speedy trial was not violated.

Anderson also asserts the court erred in admitting testimony about the pri- or robbery attempt by Anderson, Wake-field, and Tricarico, as it constituted evidence of other crimes. The court admitted the evidence as showing motive and intent to rob the station again, which it plainly does.

While the prior robbery attempt shows Anderson’s motive and intent to carry a gun and attempt to rob the same service station some two weeks later, it also demonstrates a common scheme or plan. In early February, Anderson and his friends, carrying a gun, attempted to rob a service station at 12th and Van Brunt but, because the attendant in turn brandished a gun, they fled. In late February, however, Anderson approached his friends about again attempting to rob the same station. Again they approached the station armed with a gun. Again they tried to gain access to the building and the money inside. It is well-established that “[a] prior similar crime may be shown to establish a defendant’s common scheme.” State v. Young, 643 S.W.2d 28, 30 (Mo.App.1982). Evidence of the earlier attempted robbery of the same station, using the same modus operandi, and involving most of the same people was properly admitted. The great similarity between the two attempts sufficiently established a common scheme or plan.

Anderson also asserts the court erred in denying his requests for a mistrial when the assistant prosecutor argued, first, that Carrie Richardson was Anderson’s girlfriend and second, that if Anderson was “not guilty beyond a reasonable doubt, nobody in Jackson County has ever been guilty beyond a reasonable doubt.” The court denied Anderson’s requests for a mistrial, but sustained his objection and instructed the jury to disregard the “girlfriend” comment. The court stated, “That’s counsel’s argument,” regarding the “guilty” argument.

Anderson asserts the prejudice caused by the “girlfriend” comment was not cured by the trial court’s action. Carrie Richardson is only mentioned in the transcript as a friend of Wakefield’s. While the reference to her as Anderson’s girlfriend may not be justifiably drawn from the evidence, it cannot be said that the statement furnished a ground for a mistrial. The trial court, who saw the incident, could judge its prejudicial impact on the jury. State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970); State v. Hubbard, 659 S.W.2d 551, 558 (Mo.App.1983). It did not err in not declaring a mistrial, but properly limited any prejudicial effect the statement may have had by sustaining counsel’s objection and instructing the jury to disregard. State v. Hubbard, 659 S.W.2d 549, 551 (Mo.App.1983).

Likewise, the court did not err in not declaring a mistrial following the assistant prosecutor’s “guilty” argument. The prosecutor’s comment was based on a detailed review of the evidence and, as such, his argument was permissible. State v. Hampton, 653 S.W.2d 191, 195 (Mo. banc 1983); State v. Jones, 604 S.W.2d 665, 668 (Mo.App.1980).

The judgment and conviction are affirmed.

All concur.

      . All statutory references are to RSMo 1978 unless otherwise indicated.


author: PER CURIAM.

text:
    Curtis STENNIS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35951.
    Missouri Court of Appeals, Western District.
    Feb. 26, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied April 30, 1985.
    Holly G. Simons, Columbia, for appellant.
    John Ashcroft, Atty. Gen., Mark A. Richardson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before LOWENSTEIN, P.J., and NU-GENT and BERREY, JJ.
   ORDER

PER CURIAM.

Appeal from denial of fourth Rule 27.26 motion. Judgment affirmed. Rule 84.-16(b).


author: STEWART, Judge.

text:
    Betty J. DUNCAN, Petitioner-Appellant, v. Lloyd K. DUNCAN, Respondent.
    No. 46990.
    Missouri Court of Appeals, Eastern District, Division One.
    March 5, 1985.

      David L. Hoven, Spalding & Hoven, Pacific, for petitioner-appellant.
    John W. Thiebes, Pacific, for respondent.
   STEWART, Judge.

The trial court dissolved the 28 year marriage of the parties, made division of marital property, set aside separate property and made an award of maintenance to wife over a period of three years. The three children born of the marriage were emancipated. We dismiss the appeal and remand for further proceedings.

On appeal wife complains that the trial court erred in: (1) entering a decree that is so indefinite and uncertain as to be unenforceable; (2) failing to determine the status of and dispose of all of the marital property; (3) dividing the marital property so as to be unduly and heavily weighed in favor of the respondent husband; and (4) limiting the duration of maintenance.

Husband was in construction related businesses including grading, construction and a “Reddi Mix” concrete business. These businesses had each been incorporated as Lloyd K. Duncan, Inc., Duncan Bridge, Duncan Grading and 76 Materials Company. The charters of these corporations were forfeited January 1, 1979, for failure to pay the corporate franchise tax. Husband has continued to operate the businesses.

Husband testified that he also owned a half interest in a corporation referred to as Meramec Materials. There was some confusion on the interests involved in the latter corporation. Mr. Michael Harmon testified that he held all of the stock in Meramec Materials; that stock was authorized for husband but not paid for. Money was borrowed for Meramec from the bank by Harmon with husband and wife in this case as guarantors. There is an indication of transactions between Meramec and 76 Materials but the question of who owes who what was not clarified.

From the evidence in the case husband and wife had only nominal income. When husband required funds for his personal needs he took money from the various companies. When asked whether he could afford to pay maintenance of a certain sum he replied that it all depended on how hard he wanted to work. Wife had worked in the business for some period of time. During this time she obtained two checks for $500 each identified as exhibits A and B in addition to her salary. When this subject arose there were two other exhibits introduced into evidence but there was no explanation and the exhibits are not before us. Just prior to trial wife worked part time for a fast food restaurant at $3.35 per hour.

There was evidence of misconduct on the part of each of the parties.

The court granted wife maintenance of $150 per week for two years and $100 per week for one year. It awarded her marital property consisting of a car valued at $1500, household furnishings of $2330, $10,000 as her share of the business properties and one half of the net proceeds of the marital home. She was also awarded $1500 attorney’s fee and allowed to live in the marital home until it is sold.

Husband was awarded $1860 in household furnishings, all of the business assets totalling $607,375 which included real property worth $200,000. The court also awarded husband one half interest in the marital home and ordered husband to pay the debts in the sum of $397,529.84 subject to modification as discussed hereafter. Costs were assessed against husband.

We must consider first the question of our jurisdiction. The parties do not question the determination that the marriage is irretrievably broken. We consider the marriage to be dissolved as of the date of the decree. Brown v. Brown, 537 S.W.2d 434, 438 (Mo.App.1976); In re Marriage of Wineland, 609 S.W.2d 464, 467 (Mo.App.1980). The issue is whether there was a failure to determine the status of husband’s interest in Meramec Materials and whether there was a failure to make a proper disposition of that interest.

Husband clearly and unequivocally testified that he had a one-half interest in Mera-mec Materials. Wife also testified that husband had an interest in the company but did not know the extent of the interest. Michael Harmon who was called as a witness by husband, testified that he was the sole stockholder of Meramec Materials; that stock was authorized for husband but it wasn’t “paid for;” that the account is carried on the books of the company as a receivable; that he was not certain as to what husband owed him for material or what Meramec owed husband for work husband did for the company. He also testified that money for the corporation was borrowed by him with his home as security and the bank had husband and wife sign “as personal.” Equipment of the husband and wife is being used by Mera-mec in its business.

Husband did not attempt to explain his testimony as to his interest in Meramec. When a party in full possession of his mental faculties testifies unequivocally and understandingly to a material fact peculiarly within his own knowledge it has the effect of a judicial admission. He is precluded from relying on any testimony to the contrary unless he gives some reasonable explanation of his previous statement as having been the result of mistake, oversight, lapse of memory or misunderstanding. Absent such an explanation the party may not have the benefit of any testimony to the contrary irrespective of the source. Jockel v. Robinson, 484 S.W.2d 227, 231 (Mo.1972).

Based upon husband’s testimony he has a one-half interest in a going business. The value of the business has not been established and that interest has not been distributed. It follows that the jurisdiction of the trial court has not been exhausted and this appeal must be dismissed. Anspach v. Anspach, 557 S.W.2d 3, 6 (Mo.App.1977).

Wife contends that paragraph 10 of the decree is so indefinite and uncertain as to be unenforceable. We shall discuss this issue because it is jurisdictional in nature.

To be fully understood paragraph 10 and paragraph 11 must be read together. The essential portions of those paragraphs read as follows:

10. The Court finds that the following are marital debts and orders them paid by the Respondent, who shall hold the Petitioner harmless therefrom:
CREDITOR BALANCE
Bank of Washington $ 57,363.70
Bank of Washington 20,124.08
County of St. Louis 10,655.57
CREDITOR BALANCE
Kenton & Mildred Duncan 25,000.00
Simpson Sand & Gravel 15,000.00
CIT Corporation 80,000.00
Internal Revenue Service 3,759.52
Erb Equipment Company 1,500.00
Winter Brothers 6,000.00
Mr. & Mrs. Gus Mueller 4,890.00
St. Louis County Bank 173,236.97
Respondent shall not, however, be required to pay that portion of the debt to the St. Louis County Bank which represents a second deed of trust on the marital home. The deeds of trust on the marital home shall be governed by paragraph 11, infra. However, if no definite and certain portion of the sum of money owed to the St. Louis County Bank is secured by the marital home with the second deed of trust, then all of that debt to the bank is ordered to be paid by Respondent.
11. The Court also finds that the parties are possessed of marital property consisting of the marital home in Jefferson County, the legal description of which is follows:
All of Lots Thirteen (13) and Eighteen (18) of United States Survey 1932, Township Forty-Three (43), Range Three (3) East.
The fair market value of the home is $150,000.00. The marital home is ordered sold at a price agreeable to the parties. Until it is sold the Respondent shall make all payments on the first and second deeds of trust, as well as pay all taxes, insurance and maintenance. In the event of default by Respondent, the Petitioner shall have the right to make such payments. Upon the sale of the marital home, there shall be deducted from the proceeds: (a) the costs of the sale, (b) the balance due on the two deeds of trust for the marital home, and (c) one half of the payments made after the date of this decree on the deeds of trust, taxes, insurance and reasonable costs of maintenance, which shall be paid over to the party who has made such payments. The remainder of the proceeds, if any, shall be evenly divided between Petitioner and Respondent.

The tactics of the parties in this case made it most difficult for the trial court to formulate a judgment. The case was tried on July 22, 1983. At the close of the evidence the paucity of information led the court to order each of the parties to prepare and file an affidavit that would list all of the assets and liabilities of the parties indicating who is liable for the debts. It was agreed that the affidavits would be considered evidence. There was a great disparity in the assets listed in the affidavits. Wife’s affidavit listed accounts receivable that were not listed in husband’s affidavit. Wife’s list of debts contained the names of the obligors. Husband listed debts but not the obligors. After the affidavits were filed the case was reopened for further evidence but little was added that would clarify the financial position of the parties.

In considering the point at issue the debt involved is $173,236.97 owed to St. Louis County Bank. The only evidence as to the obligors on this debt is found in wife’s affidavit. The obligors listed are Lloyd K. Duncan, Inc., Lloyd K. Duncan and Betty J. Duncan. Collateral security for the debt is listed as a first deed of trust on commercial property in Pacific, Missouri and a second deed of trust on the marital home which is on 88 acres in Jefferson County. We could assume that the obligation is represented by a note or notes. The date and terms of the notes or the terms of the deeds of trust are not in evidence. The testimony of the accountant on this issue is so indefinite as to be valueless. He testified the amount of the debt was $170,-000.00 with a second deed of trust on the residence; he said nothing about a first deed of trust. He “believed” both parties were obligated but didn’t know if a corporation was also liable. He testified he had not seen the legal papers with respect to all of the obligations.

The critical portion of the decree is the last portion of paragraph 10 which provides that husband is not to pay any portion of the deed of trust to St. Louis County Bank which represents a second deed of trust on the family home. However, if there is no definite and certain portion owed to the hank respecting the second deed of trust then husband is to pay the entire debt. As we read this portion of the decree husband is required to pay all debts attributable to the businesses. Both parties are liable on their personal obligations including any portion of the debt to St. Louis County Bank in the sum of $173,236.97 allocated to the marital home property. If there is no portion of the debt specifically allocated to the second deed of trust husband would be liable for the entire debt.

It would appear that the obligation is a business debt of the corporation if the charter had not been forfeited when the debt was incurred or at least the obligation of the business operated by husband, with the added security of the individual liability of husband and wife.

As the record stands there is no allocation of the security. If, however, the parties were to sell the residential property the obligation secured by the first deed of trust on that property would have to be paid off and the first deed of trust released. It would also be necessary to obtain the release of the second deed of trust. The amount necessary to obtain the release of the second deed of trust is dependent upon the bank. The collateral security and any part of it is liable for the entire debt. After the first deed of trust on the home has been released the bank could require that the balance of the proceeds'of the sale be applied to the debt as a condition to release the second deed of trust. The result would be that wife would receive nothing and over $100,000.00 of husband’s business debts would be discharged.

Respondent argues that the intent of the trial court is to require the wife to use her portion of the proceeds of the sale of the-residential property to pay the debt. This would in all probability be the result although we do not believe that this was the intention of the trial court.

It was undoubtedly the intention of the court to require husband to pay the debts incurred in the businesses. We question the disparity of the distribution of marital assets notwithstanding the provision under consideration especially when it is considered that as to creditors, wife is still liable for the business debts. According to her affidavit she is an obligor on all of the debts. There is no evidence by husband to the contrary.

To enforce this portion of the decree it would be necessary to develop additional evidence, possible interpretation of that evidence and an interpretation of the decree in the light of these developments. The decree is so indefinite and uncertain as to render the decree void. Ravenscroft v. Ravenscroft, 585 S.W.2d 270, 273 (Mo.App.1979).

The information necessary to assist the trial court in reaching a conclusion with respect to the issues presented should be readily accessible to the parties. Evidence of the obligations and valuation of the assets should be before the court in the records of the banks, including financial statements presented to the banks, the articles of incorporation, the minutes and books and other records of Meramec should also be readily available.

The court’s obvious diligence in determining the valuation of those items presented to it is to be commended but as said before the court cannot gather the evidence and try the case for the parties; it requires the cooperation of the parties. Anspach v. Anspach, 557 S.W.2d at 6.

It is with considerable reluctance that we must dismiss this appeal and remand the cause for further proceedings at which time the court may also reconsider all other issues in light of this opinion and the evidence which will be produced upon remand.

SNYDER, P.J., and DONALD MAN-FORD, Special Judge, concur.


author: GREENE, Judge.

text:
    FARMER’S PRODUCTION CREDIT ASSOCIATION, Plaintiff-Respondent, v. Billy YOUNG, Defendant-Appellant.
    No. 13825.
    Missouri Court of Appeals, Southern District, Division Three.
    March 7, 1985.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 28, 1985.
    Application to Transfer Denied April 30, 1985.
    Jo Beth Prewitt, Alton, for plaintiff-respondent.
    Roy W. Brown, Bruce B. Brown, Kansas City, for defendant-appellant.
   GREENE, Judge.

Plaintiff, Farmer’s Production Credit Association of Rolla, Missouri (Farmer’s), a federally chartered lending corporation, brought a replevin action against defendant, Billy Young, for immediate and exclusive possession of a 1972 Ford # 3000 tractor, S.N. # C349037. Farmer’s alleged that it had a special interest in, and was lawfully entitled to, possession of the tractor pursuant to a security agreement and financing statement, copies of which were attached to and made a part of the petition, that the tractor had a value of $3,800, and that Young wrongfully refused to relinquish possession of the tractor to Farmer’s.

After hearing evidence, the trial court entered judgment for plaintiff for possession of the tractor or, in the alternative, for its value, which the court found to be $3,800. Young appealed, contending there was no substantial evidence to show that 1) Farmer’s security interest was perfected at the time Young purchased the tractor, or 2) Young had actual knowledge of the security interest at that time, or 3) Young gave value for and took possession of the tractor.

The judgment of the trial court must be affirmed if it is based on substantial evidence, is not against the weight of the evidence, and is not based on any erroneous declaration or application of law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The only evidence before the trial court was the testimony of Richard King, an officer in Parmer’s Alton, Missouri branch office, and documents identified by King. The evidence shows that in 1973, Troy and Maryanne Earls, husband and wife, started borrowing money from Farmer’s to finance their farm operation. In 1976, they established what was called an operating loan to provide money for feed, supplies, etc. In 1978, the Earls borrowed more money to buy a truck and in 1979, another loan was taken to construct a farrowing unit. The loans were secured by a deed of trust on real estate, which is not involved here, and later by a security agreement dated October 16, 1980, granting Parmer’s a present security interest on 309 hogs and pigs and a 1977 Chevrolet truck. Because the Earls’ security was decreasing, Parmer’s, on April 20, 1981, requested, and the Earls executed, an amended security agreement which added to the existing security agreement other livestock and machinery, including the tractor in question.

On May 6, 1981, a financing statement was filed in the Oregon County Recorder’s office, identifying debtors as Troy H. and Maryanne Earls, the secured party as Farmer’s and the security being all “livestock, machinery and equipment.”

The Earls did not prosper, and their three loans became overdue. On February 11, 1982, a consolidation note, combining the three overdue loans was executed by the Earls. The note was in the amount of $77,246.25, and provided, among other things, that the note was secured by the security agreement dated October 16, 1980, “as amended from time to time and such other and further security as the Association may deem necessary at any time which the undersigned parties (Earls) agree to deliver.”

The situation did not improve, and the Earls were not making payments on the note. Parmer’s requested that they surrender the tractor. The Earls asked permission to keep it to help maintain the farm until it was sold. Farmer’s agreed. The Earls, without notifying Farmer’s, sold the tractor to Young for $3,800. Young admitted to King that he had purchased the tractor from the Earls for $3,800, and refused to relinquish possession of the tractor to Farmer’s. The Earls did not pay to Farmer’s any money they received from Young.

The parties agree that the facts are to be construed in accordance with the provisions of the Uniform Commercial Code — Secured Transactions that have been adopted in Missouri, and codified in § 400.9-101 through 400.9-507. Section 400.9-201 states that “Except as otherwise provided by this chapter a security agreement is effective according to its terms between the parties, against purchasers of the collateral and against creditors.” Young, recognizing the barrier against his position created by this statute, argues that Farmer’s security interest in the tractor was not perfected and, therefore, Farmer’s claim to the tractor was inferior to his. Young premises this argument on § 400.9-301(l)(c), which states generally that an unperfected security interest in goods is subordinate to the rights of a buyer not in the ordinary course of business to the extent that he gives value and receives delivery of the collateral without knowledge of the security interest, and before that interest was perfected. This argument has no basis in either fact or law.

The new consolidation note which was executed on February 11, 1982 states on its face that it was secured by the October 16, 1980 security agreement, and its amendment, which clearly states that the tractor in question was security for the money the Earls owed Farmer’s. The financing statement filed in Oregon County on May 6, 1981, was in effect when Young bought the tractor from the Earls. Once filed, it was effective for at least five years unless released. § 400.9-403(2). It had not been released. The point has no merit.

In his remaining point, Young asserts Farmer’s did not prove he possessed the tractor Farmer’s was trying to replev-in. In his answer to Farmer’s petition, Young averred in paragraph six that he had paid full market value for the tractor in question. Also, in King’s testimony, he said Young had told him that he had bought the tractor in question from the Earls and had paid $3,800 for it. This evidence established that the tractor in Young’s possession was the same one in which Farmer’s had a secured interest. The point has no merit. There was substantial evidence to support the trial court’s judgment. The judgment is not against the weight of the evidence, and is not based on any erroneous declaration or application of law.

Judgment affirmed.

CROW, P.J., and TITUS and FLANI-GAN, JJ., concur.

      . All references to statutes are to RSMo 1978, V.A.M.S.


author: PREWITT, Chief Judge.

text:
    In re J_ R_ N_, Jr., a minor.
    No. 13758.
    Missouri Court of Appeals, Southern District, Division Two.
    March 8, 1985.
    Motion for Rehearing and Transfer to Supreme Court Denied March 27, 1985.
    Application to Transfer, Denied April 30, 1985.
    M. Elise Branyan, Public Defender, Springfield, for juvenile-appellant.
   PREWITT, Chief Judge.

The minor, a 16-year-old male, was committed to the custody of the Director of Youth Services for an indeterminate period. He appeals, asserting that the evidence was insufficient to find that he had committed the crime of assault in the first degree because the proof did not show beyond a reasonable doubt that he took a substantial step toward causing serious physical injury to another.

There was evidence that appellant, saying, “I want Richard”, attempted to enter the Missouri Hotel carrying a “lug wrench”. A police officer, who was called to the hotel, testified that he asked appellant “what he was doing and what was going on.” He said appellant replied that he was there “to assault the manager.” When asked who appellant was referring to, the officer said appellant “spoke the name” of “Mr. Corder”. Richard Corder was the assistant manager at the hotel.

Assault in the first degree can be committed if someone “attempts to kill or cause serious physical injury to another person”. § 565.050(2), RSMo 1978. Quoting § 564.011.1, RSMo 1978, appellant contends that there was no evidence that he took a “substantial step” toward causing serious physical injury to Corder. Assuming, but not deciding, that § 564.011 is relevant in this context, we find no merit to this contention.

Section 564.011.1 does not require that an actual and specific attempt be made to perform each and every element of the crime. State v. Thomas, 670 S.W.2d 138, 139 (Mo.App.1984). A defendant’s overt act need not be the ultimate step toward, or the last proximate act or the last possible act in the consummation of the crime attempted. Id.

The committee comments to the Criminal Code are an aid to the interpretation of it. State v. Olson, 636 S.W.2d 318, 321 (Mo. banc 1982). Those comments, set out following § 564.011 in Y.A.M.S., state in part:

What act will constitute a substantial step will depend on the facts of the particular case. If the other requirements of attempt liability are met, the following, if strongly indicative of the actor’s criminal purpose, should not be held insufficient as a matter of law:
(a) lying in wait, searching for or following the contemplated victim of the offense.
* * * * * *
(c) reconnoitering the place contemplated for the commission of the offense.
* * * * * *
(e) possession of materials to be employed in the commission of the offense, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances.
(f) possession, collection or fabrication of materials to be employed in the commission of the offense, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances.

In State v. O’Dell, 684 S.W.2d 453 (Mo.App.1984), this district recently considered what is a substantial step toward the commission of an offense. The discussion there indicates that a substantial step toward causing serious physical injury to Corder occurred here. No point would be served in restating that discussion.

It can be reasonably inferred from the evidence that appellant wanted to strike Mr. Corder with a lug wrench. Obviously, that could cause serious physical injury or death. Under § 564.011.1 there was a sufficient basis for the court to find that a substantial step toward that end had been taken. Even disregarding that section, there was sufficient evidence that appellant attempted to cause serious physical injury to Corder to justify the court’s findings.

The judgment is affirmed.

HOGAN, P.J., and MAUS and CROW, JJ., concur.


author: TITUS, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Cecil W. CLOSSER, Defendant-Appellant.
    No. 13541.
    Missouri Court of Appeals, Southern District, Division One.
    March 12, 1985.
    John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Frederick W. Martin III, West Plains, for defendant-appellant.
   TITUS, Presiding Judge.

A Douglas County jury found defendant guilty of robbery in the first degree (§ 529.020) and assessed punishment at imprisonment for 30 years. § 558.011.1(1). Defendant appealed.

Defendant was charged with having committed robbery in Howell County on September 23, 1982, via a complaint filed September 29, 1982. However, defendant had been arrested in Kansas in September 1982 on a charge committed in that jurisdiction which resulted in a sentence to the penitentiary in Kansas. Pursuant to defendant’s compliance with paragraph one, Article III of the Agreement on Detainers, § 217.490, he gave written notice of his request for final disposition of the Missouri charge which was received by the Howell County circuit court and prosecutor on March 28, 1983.

Per defendant’s request, he was returned to Howell County on September 1, 1983. Between September 2 and 12, 1983, defendant was informally arraigned, was appointed counsel per request and was afforded a preliminary hearing on the complaint after which he was bound over to the Circuit Division. The information was filed September 13, 1983, and defendant was arraigned thereon September 14, 1983. At the arraignment defendant unsuccessfully moved for dismissal of the charge claiming he would not have sufficient time to prepare a defense if trial were held within the 180 days permitted by § 217.490 and the cause was set for trial for September 20, 1983, or 176 days after receipt of defendant’s request for disposition, supra. On the day set for trial, defendant filed an application for a change of venue and a change of judge. Rules 32.03, 32.07 and 32.08. The application was sustained September 20, 1983. After a new judge was assigned, venue was changed to Douglas County and trial was set for October 3, 1983. On the latter date (day of trial) defendant, inter alia, filed a motion to dismiss under § 217.490 because his trial was taking place in excess of 180 days, to wit 189 days. The motion was overruled and the case proceeded to trial. The entire trial testimony consumes but 26 pages of the transcript on appeal. Defendant offered no testimony or evidence at trial and does not here complain concerning the sufficiency of the evidence to sustain the conviction. Of additional interest is that when testimony anent defendant’s motion to dismiss, supra, was presented to the circuit court of Douglas County on October 3, 1983, defendant’s counsel admitted that when defendant was arraigned in Howell County on September 14, 1983, he repeatedly asserted, in answer to court questions, that he insisted upon “his right to speedy trial within [the] 180 day time frame.” At the same time defense counsel also acknowledged that when appearances were made on September 20, 1983, when the case was set for trial in Howell County, “the state was ready for trial and had witnesses present and ... the jury panel was there ready for selection.”

Defendant’s initial point is that the trial court erred in denying his October 3, 1983, motion to dismiss the information per § 217.490 because he had not been brought to trial within 180 days of delivery of his written request for final disposition of the Missouri charge.

Under Rule 32.08 “A defendant who desires both a change of venue and a change of judge must join both requests in a single application” which was here done. We know from the 1984 Missouri Legal Directory that Howell County has a population of 23,031. By reason of that and the fact defendant’s motion for a change of judge was filed within 30 days of arraignment, the Howell County court had no discretion but to grant the motion. Rules 32.07 and 32.08. Also, after a new judge was assigned, he had no choice but to grant defendant’s request for a change of venue. Rule 32.03. In other words, the Howell County court under these rules, because of the mandatory use of “shall” therein, had no freedom but to grant the application for a change of judge and the newly appointed judge had no choice except to sustain the application for a change of venue. Consequently, the reason defendant’s trial was not held within the 180 days on September 20, 1983, was that his application for a change of venue and judge, concerning which the court of Howell County had absolutely no discretion, brought and forced mandatory hiatus in the conduct of his trial within the period set forth in § 217.490.

State v. Sallee, 624 S.W.2d 184, 186[1] (Mo.App.1981), held that “A continuance granted at the request of defendant’s attorney tolls the 180-day period of the ‘agreement on detainers’... .” We comprehend little, if any, difference between a pause caused in a legal proceeding because of a continuance at defendant’s asking and such a hiatus produced by defendant’s application for a change of judge and venue which, in the situation here, requires unqualified compliance. In our opinion Commonwealth v. Fasano, 6 Mass.App. 325, 375 N.E.2d 361, 366[2, 3] (1978), confirms our conclusion. In Fasano defendant asserted the case against him should have been dismissed because there was no showing of “good cause” why he had not been brought to trial within 180 days. The court there noted that on the 177th day of the period (compared to the 176th day here) the prosecution was ready for trial when defendant moved to dismiss. In denying defendant’s claim the court said: “We are of the opinion that the presentation of the [defendant’s] motion ... on October 7 with the announced intention of filing it operated as a waiver of so much of the 180-day period as should be reasonably necessary to secure a judicial resolution of the questions raised by the motion.” Also see, Reaves v. State, 242 Ga. 542, 250 S.E.2d 376, 386[30] (1978), where it was held the delay occasioned by defendant’s pretrial motions provided good cause for tolling the time limitation specified in the Agreement on Detainers.

At the trial of the cause, the owner of the robbed package liquor store testified briefly that he owned the establishment and was not present when the robbery occurred. His testimony covers approximately one page of the trial transcript. He was not cross-examined by the defendant. The only other two witnesses who testified at trial were the package store employee who was on duty at the time of the robbery and a Kansas police officer who testified that when defendant had been arrested in Kansas and had been given the Miranda Warning he, inter alia, orally admitted the armed robbery in question. The liquor store employee had testified at the preliminary hearing, and the Kansas officer had been extensively questioned by defendant’s lawyer on defendant’s motion to suppress the statement defendant allegedly made to this official at the time of the Kansas arrest. Consequently, defendant and his counsel were well aware prior to trial what the state’s evidence would be. The defense has not undertaken to speculate, let alone demonstrate, what knowledge of the testimony of the state’s witnesses or evidence he was deprived of preceding trial because of the setting dates involved. If defendant wanted or deserved more in-depth interrogation of the state’s two and only principal witnesses he could have sought a continuance albeit he avowed, as previously observed, his insistence on having the trial within the 180-day period in question. As his application for a change of judge and venue left no alternative but 'to mandatorily grant same and thus extend the trial date, through no fault of the state, beyond the 180-day period in question, we detect no valid basis for his first point relied on which is denied.

Rule 29.11(d) provides: “In jury tried cases allegations of error to be preserved for appellate review must be included in a motion for new trial except that questions of jurisdiction of the court over the offense charged ... need not be included in a motion for new trial.” When § 217.490 is applicable and a defendant is not tried within 180 days and no “good cause” is demonstrated as to why trial was not conducted within that limitation, the court loses jurisdiction over the defendant and the offense charged. State ex rel. Hammett v. McKenzie, 596 S.W.2d 53, 54 (Mo.App.1980). Consequently, defendant’s first point, as it relates to the jurisdiction of the trial court, was preserved for appellate review although not included in a timely motion for a new trial. However, the same cannot be said of defendant’s second and final point relied on.

If a motion for new trial, as here, is not filed within the time prescribed by Rule 29.11(b), this court, sua sponte, must take notice of that fact [State v. Barkwell, 590 S.W.2d 93, 95[1] (Mo.App.1979) ] for such a motion preserves nothing for appellate review. State v. Felkins, 599 S.W.2d 955, 956[1] (Mo.App.1980).

Defendant seeks plain error review of his second point under Rule 29.12(b), admitting it was not properly preserved in his untimely motion for a new trial. The point concerns the overruling by the court nisi of defendant’s motion to quash the jury panel and array because the prospective jurors allegedly had not been selected in accordance with the provisions of Ch. 494. We have read the statutes, the transcript and briefs relative to defendant’s claim and find that no manifest injustice or miscarriage of justice resulted from defendant’s hypothetical claims of trial court error and therefore find no error, plain or otherwise. Defendant’s second point relied on is denied. State v. Phelps, 673 S.W.2d 128 (Mo.App.1984).

The judgment is affirmed and defendant’s request for oral argument per our Special Rule 1(b) is denied.

FLANIGAN and GREENE, JJ., concur.

      . References to statutes and rules are to V.A. M.S. and V.A.M.R.

      . See State v. Austin, S.D. No. 13545,-S.W.2d—(Mo.App.1985), for disposition of co-defendant’s appeal.


author: MAUS, Judge.

text:
    Teddy Edwin ALLEN, Plaintiff-Respondent, v. Albert ALLEN, Defendant-Appellant, and Chelesta Coble and Mrs. Erbin Allen, Defendants-Respondents, and Nay Allen, Intervenor-Appellant.
    No. 13559.
    Missouri Court of Appeals, Southern District, Division Two.
    March 12, 1985.
    James E. Curry, Ava, for plaintiff-respondent.
    Richard T. Martin, Gainesville, for defendant-appellant.
    Turner, Reid, Duncan, Loomer & Patton, Springfield, for appellants.
    John M. Wiles, West Plains, for defendant-respondent Chelesta Coble.
    J. Richard Owensby, Richard L. Schnake, Neale, Newman, Bradshaw & Freeman, Springfield, for defendant-respondent Mrs. Erbin Allen.
    Wade & Haden, Ava, for intervenor-ap-pellant.
   MAUS, Judge.

In this action an interlocutory judgment in partition determined the interests of the parties and ordered a tract of real property sold. That judgment also denied the claim of defendant Albert Allen and intervenor Nay Allen that they had acquired full title by adverse possession. Those two parties appeal. § 512.020.

A very brief summary is an adequate factual basis for the disposition of the case. At the time of his death, the 141 acres of hill land was owned by J.D. Allen. He died intestate in June of 1942. He was survived by his widow Euretta Allen. His lineal heirs were seven children and a grandchild, Teddy Edwin Allen. Teddy was the son of an eighth child who died in 1929. Defendant Albert Allen was one of the surviving sons. Intervenor Nay Allen is a son of Albert Allen. The widow, Euretta Allen, died July 5, 1965. No administration was had on the estate of J.D. Allen.

In 1957, Albert Allen started pasturing cattle on the property. When asked if his mother said he could use the property, Albert Allen answered, “Yeah. She just turned it over to me, taxes and everything. I had to pay them for her.” He also testified that while riding in an automobile, about the time Euretta Allen died, the boys, meaning his surviving brothers, said he deserved the place and agreed to give it to him. At another place in his testimony, Albert Allen stated, “No, the boys all just let me use it. And I just kept on. I had to pay the taxes on — for it.”

In 1980 and 1981, three surviving brothers and the children of a deceased sister conveyed their interests to Albert Allen. A surviving sister, Chelesta Coble, the grandson previously mentioned, Teddy Edwin Allen, and Mrs. Erbin Allen, the widow and devisee of a deceased brother, did not convey their interests. These three individuals are the respondents.

After about 1957 no one lived on the property. From 1957 to 1966 Albert Allen pastured cattle on the property. Since 1966, Albert Allen and Nay Allen his son, as partners, have so used the property and paid the taxes thereon. Albert Allen owns 300 acres on one side of the property. Nay Allen owns 170 acres on the other side of the property. The three tracts have been kept under one fence. The fences have been maintained by Albert Allen and Nay Allen. They have kept a lock on the entrance gate to the property. Except for hunting and cutting wood with the permission of Albert Allen or Nay Allen, no other use has been made of the property.

Appellants’ first point is that the trial court erred in not declaring them to be sole owners of the property by reason of adverse possession. The appellants did not establish that title by showing they alone made use of the property for the statutory period. The burden was upon them to show that the character of their use, under the surrounding circumstances, met the complex and detailed requirements necessary to establish adverse possession within the meaning of that doctrine. J. C. Nichols Co. v. Powell, 641 S.W.2d 780 (Mo.App.1982). Those requirements have received a myriad of expressions. Three are appropriate and decisive. “The possession must be (1) hostile, that is, under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous, for ten years prior to commencement of the action to perfect title by adverse possession.” Walker v. Walker, 509 S.W.2d 102, 106 (Mo.1974). A cotenant claiming adverse possession

must show the actual knowledge of the real owner that he claims in opposition and defiance of his title, or he must show such an occupancy and user, so open and notorious and inconsistent with, as well as injurious to, the rights of the true owner, that the law will authorize, from such facts, the presumption of such knowledge by the true owner. It is not the mere occupancy or possession which must be known to the true owner to prejudice his rights, but its ‘adverse’ character.

Miller v. Warner, 433 S.W.2d 259, 262-263 (Mo.1968). “Permissive possession is not adverse possession and if possession in its inception is permissive, it so remains until the hostile claim is brought home to the true owner and thereafter continues for such time as will satisfy the statutory requirements in time.” Tallent v. Barrett, 598 S.W.2d 602, 606 (Mo.App.1980).

The appellants principally rely upon two cases dealing with adverse possession by cotenants, Cash v. Gilbreath, 507 S.W.2d 931 (Mo.App.1974) and Wunderlich v. Baumgarth, 437 S.W.2d 78 (Mo.1969). These cases are readily distinguishable. In Cash, the claimant was not only in actual possession but adversely claimed under a recorded, but legally ineffective, deed and a recorded tax deed. In Wunderlich, the decisive facts were 35 years actual possession with a claim of ownership under a conditional deed.

There was no evidence the respondents had actual notice the appellants claimed ownership adversely to them. Nor was there evidence tending to establish constructive notice of such a claim other than the appellants’ use of the property. That use was permissive until the death of Eu-retta Allen. Albert Allen stated that during that period he recognized his mother owned the property. After the mother’s death, in speaking of his sister, he recognized that she had an interest in the property. Nay Allen characterized his claim by referring to an agreement with his father that the land would “(j‘]ust be mine perhaps when — .” Nay Allen testified that as far as he knew, he and his father were using the land with the cotenants’ permission. Albert Allen said none of the cotenants objected to their use of the property and “I practically felt like I owned it.”

Without an extended consideration of all of the requirements to establish adverse possession, the appellants’ evidence does not establish “an unequivocal claim of ownership inimical to the rights of his coten-ants which is so open and notorious as to manifest an intention to possess the property as his own and to exclude others from control and to ignore and repudiate any right in his cotenants.” Russell v. Russell, 540 S.W.2d 626, 634 (Mo.App.1976). Compare Tallent v. Barrett, supra, a remarkably, factually similar case. The trial court’s denial of the appellants’ claim of ownership by adverse possession is supported by the evidence and is affirmed. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The appellants’ second point is that the trial court erred in not awarding them judgment for proportionate contribution for taxes from 1965 to 1980 which they paid in the total amount of $925.92. They rely upon Hartog v. Siegler, 615 S.W.2d 632 (Mo.App.1981). The applicable general rule has been succinctly expressed.

In this state it is settled that a coten-ant, who has enjoyed the occupancy of the premises, who seeks and is to be granted an allowance for improvements made thereon subjects himself to the crediting of his out-of-possession coten-ant with the reasonable value of the premises he occupied, and, in partition equity may set off that rental value against the improvements, taxes, and other charges paid by the tenant in exclusive possession although he has not ousted his cotenant. Goforth v. Ellis, supra, [300 S.W.2d 379] 300 S.W.2d loc. cit. 379(6); Byrne v. Byrne, 289 Mo. 109, 233 S.W. 461; Martin v. Martin, 218 Mo. App. 617, 266 S.W. 336; Annotation, Co-tenants — Rents and Profits — Use, 51 A.L.R.2d 394, 459, Sec. 20; 14 Am.Jur., Cotenancy, Sec. 43, p. 30, 1960 Pocket Supplement.

Beckham v. Eggleston, 341 S.W.2d 337, 340 (Mo.App.1960) (emphasis added). In this case, there was evidence from which the trial court could reasonably conclude the rental value of the property for the 15 years in question exceeded $925.92. The trial court did not err in denying the appellants’ claim for contribution. The judgment is affirmed.

PREWITT, C.J., HOGAN, P.J., and CROW, J., concur.


author: KAROHL, Judge.

text:
    STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Plaintiff-Appellant, v. Donald E. ROTH, et al., Exceptions of Donald E. Roth, et al., Defendants-Respondents.
    No. 47492.
    Missouri Court of Appeals, Eastern District, Division One.
    March 12, 1985.

      See also, Mo.App., — S.W.2d —.
    John Wheelan Maupin, Kirkwood, for plaintiff-appellant.
    Samuel C. Ebling, St. Louis, for defendants-respondents.
   KAROHL, Judge.

This is a 1976 highway condemnation case involving 83.6 acres of industrial zoned property owned by defendant-respondent Donald E. Roth and others [Roth], in St. Louis County. The commissioners awarded defendants $4,220,000. Both sides filed exceptions. The 1983 circuit court jury trial resulted in a verdict and judgment for Roth in the sum of $3,250,-000. Plaintiff-condemnor moved timely for a new trial and now appeals the amount of the judgment.

Roth purchased the property in 1968. It is a tract containing 83.6 acres. The land taken for the highway right-of-way was 24.5 acres. Part of the remaining acreage is landlocked by the taking (44.3 acres) and part is left with irregular boundaries which detracts from its value.

At the time of the agreed date of taking, October 13, 1976, the land had been surveyed, platted and zoned for industrial development. Roth had completed engineering studies and drawings. Survey stakings were performed. Over one million cubic yards of earth had been moved. Storm sewers and railways had been realigned; street grading and subgrading were completed. Trunk sewers were located on the property and the metropolitan sewer district had approved plans for extensions of laterals from the main sewer trunks to individual subdivision lots. Forty-six lots had been planned, but streets and access to the main thoroughfare had not been constructed. The property was accessible to utilities. Roth’s expert witnesses viewed the land as being neither a completed subdivision nor a piece of unimproved property, but “somewhere in between,” closer to being developed. The State Highway Commission’s experts characterized the land as “raw land” upon which no improvements had been made.

Property owner Roth testified that he was in the real estate development business and purchased the eighty-four acre tract in 1968. He described the property in 1968 as very rough and hilly with a lot of big trees. Portions of the land were undermined. Prior to acquiring the land, Roth had studies done on the property by a professor of Washington University, a compaction engineer and soil engineer. Appraisals were conducted by two different appraising firms. Roth purchased the land for $390,000, which included a $100,000 finder’s fee. Surveys were performed, engineers hired, preliminary through final plans drawn, and aerial photographs taken. The property was staked, creeks were drained and drainage channels realigned. The property was zoned industrial and the preliminary plats for development were approved by the cities of Bel-Ridge and St. John, where the property was located. Roth’s company rented equipment to clear and grade the land. Roth employed and paid construction companies and other professionals to help with the work. Roth contracted, to sell two of the forty-six proposed lots for $1.67 per square foot with a condition that a street be put in. The street was never constructed and the two lots were subsequently returned to Roth. Other lots were leased to brick contractors in 1969.

As the owner of the property and experienced real estate developer, Roth gave an opinion as to the fair market value of the property prior to the taking of $5,458,838, using $1.50 per square foot of land area. His opinion of the value after the taking was $93,738, leaving total damages of $5,375,100, at the time of the taking in 1976.

Jessie F. Colvin, a site development engineer; Eugene E. Brucher, a consulting engineer and foundation expert; Ronald Behle, a builder and real estate broker; and Ronnie D. Bales, registered surveyor, each testified as to their work which they performed in the development of Roth’s property.

Roth called three expert witnesses to testify to the value of the property taken. They each used comparable land sales to support their opinions as to the damages. The first witness testified that damages for the taking were $4,169,800 [$1.32 per square foot]. His opinion was based on twelve comparable sales transactions involving lots which were all zoned for industrial use. They ranged in size from 11,700 to 112,000 square feet and were located within several miles of defendants’ tract of land. Each lot was on a street, had sewers, was accessible to utilities, graded, and had no buildings. These lots were sold between 1972 and 1978 for amounts ranging from 73$ to $2.00 per square foot of land area.

Roth’s second expert testified that damages for the taking were $4,372,300 [$1.25 per square foot]. His opinion was based on four tracts of land, similarly located, which he described as “raw land” ranging in size from twenty-four to eighty-seven acres. The tracts were unplatted, ungraded and undeveloped, and sold for 31$ to 41$ per square foot of land area, between 1968 and 1973. These properties were subsequently developed and zoned industrial. He also considered smaller parcels within these tracts, ranging in size from 35,283 square feet to 3.1 acres, that were sold after they had been developed. The improvements on these smaller tracts included grading, streets, sewers, and accessibility to utilities. These sales were made between 1968 and 1978 and the lots sold for amounts ranging from $1.30 to $2.12 per square foot of land area.

The third expert testified that the damages for the taking were $4,360,820 [$1.39 per square foot]. His opinion was based on seven comparable sales involving tracts of land, in the same locality, industrially zoned, and with similar amenities. The years involved were 1970 to 1978 and these tracts were purchased for amounts ranging from $1.63 to $3.00 per square foot of land area.

The three experts based their opinions of damages for the taking on the same 24.5 acre tract. They differed as to the value of the resulting landlocked and remaining tracts which explains the expert’s net figures for damages. Their opinions were not based solely on square foot values.

Plaintiff objected to evidence of the sale prices of comparables utilized by Roth’s experts’ (except for the four tracts purchased as “raw land” and mentioned by the second expert) arguing those sales were irrelevant and immaterial because of the great disparity in size and amenities when compared to defendants’ property. In plaintiff’s view they were not probative because they were incomparable. Every objection in this regard was overruled.

Plaintiff called two expert witnesses to testify as to comparable land sales and to give their opinions of defendants’ damages for the taking. The first witness assessed damages for the taking at $344,085. This opinion was based on five sales transactions involving industrial zoned undeveloped tracts of land, similarly located, ranging in size from 29.25 to 133 acres. These sales occurred between 1970 and 1974 and the tracts were sold for amounts ranging from $5,623 to $15,000 per acre. Plaintiff’s second witness testified that damages for the taking were $367,150. His opinion was based on six sales transactions only one of which was developed. The tracts were in the same locality and ranged in size from 24 to 133.72 acres. These purchases occurred between 1970 and 1974 and sold for $5,600 to $34,855 per acre. The purchase for $34,855 per acre was for an improved tract.

The Commission’s sole point on appeal is as follows:

The trial court erred by allowing into evidence in an abuse of its discretion 26 ‘comparable sales’ because said sales were not relevant to the issues of this cause in that they were not as a matter of law comparable to the tract in condemnation due to the gross disparity in size and industrial amenities: these sales ranged in size from 0.27 acre to 5.99 acres and had developed street frontage and available utility services. The subject tract was approximately 84 acres, without developed street frontage or available utility services.

We note that appellant’s point on appeal is vague and confusing. If we view the point as being in compliance with Rule 84.04 requiring that appellant set forth wherein and why the trial court erred we are confined only to disparity as to size and the degree of industrial amenities of the comparables. Further, plaintiff’s point mixes a claim of error as a matter of law with a claim of error based upon abuse of discretion. The claim of error as a matter of law is valid only if Roth’s experts relied upon comparable sales which had no probative value whatsoever. [i.e. the value of sales of oranges will not be probative of sales of apples]. See St. Louis O.H. & C. Ry. Co. v. Fowler, 142 Mo. 670, 44 S.W. 771 (Mo.1898). If we review the assignment of error in that posture we review the issue independently and reach our own conclusions upon the law. See M.F.A. Mut. Ins. Co. v. Home Mut. Ins. Co., 629 S.W.2d 447 (Mo.App.1981).

As a matter of law we find that the twenty-six tracts used by Roth’s experts were comparable to the condemned land. In State ex rel. State Highway Commission v. Ankrom, 588 S.W.2d 172 (Mo.App.1979) the court held that comparable tracts of land, ranging in size from one to six acres, having access to public roads, were not comparable as a matter of law to the condemned land, a one-hundred acre farm tract served by a fifteen foot private road. Id. 44 S.W. at 173. In Fowler the court held that “[s]ales of small residence or business lots on improved streets would give the jury no assistance in estimating the value of a tract of twenty-four acres of unimproved land.” Id. 44 S.W. at 773. The facts, however, are different in the present case. Plaintiff’s land was neither raw land nor fully developed. It was zoned industrial as were the comparables. It was partially developed as were some of the comparables. Access, utilities and proximity to roads were not wholly different. We do not find error as a matter of law.

In the alternative plaintiff’s point claims abuse of discretion which implies that the trial court was not bound by a rule of law but was free to permit the evidence of comparables that may have differed in size and degree of development unless such testimony could not help the jury in evaluating the experts’ opinion of value or the opinions based in part on incomparables were not probative, worthless or misleading. In this light we review for abuse of discretion in the admission of evidence.

The admission of evidence of comparable sales rests largely in the discretion of the trial court and the trial court’s judgment in the matter will not be disturbed except if manifestly abused. State ex rel. State Highway Commission v. Wertz, 478 S.W.2d 670, 677 (Mo.1972). That discretion is abused only when the trial court’s ruling runs against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to show a lack of careful consideration and shock the sense of justice; if reasonable men can differ about the propriety of the action taken by the trial court, then the trial court did not abuse its discretion. Kasper v. Helfrich, 421 S.W.2d 66, 69 (Mo.App.1967).

To determine whether collateral sales are admissible as comparable sales we look to the landmark case of In re Armory Site in Kansas City, 282 S.W.2d 464 (Mo.1955) which governs.

The importance of evidence of the sale price of other land depends upon the degree of nearness of the sale in point of time and the proximity of the property, of the similarity in location, and in the use to which the property may be adaptable. In determining the admissibility of evidence of this nature there necessarily must be considerable discretion on the part of the trial judge.

Id. at 473.

The dissimilarities of the comparable sales go to the weight to be given the evidence by the jury as opposed to the evidence’s admissibility. U.S. v. Becktold Co., 129 F.2d 473, 479 (8th Cir., 1942); State ex rel. State Highway Commission v. Kobema, 396 S.W.2d 654, 662 (Mo.1965); Nichols Eminent Domain, 3rd Ed., Volume V, § 21.31[3].

The evidence is clear that the Roth property was not “raw land” but developed to the degree that the comparable sales used were similar and therefore admissible as evidence. State ex rel. State Highway Commission v. Twin Lakes Golf Club, Inc., 470 S.W.2d 313, 315 (Mo.1971). Roth’s experts were qualified as expert real estate appraisers without objection. They each described the method of comparable sales and made plain the similarities of and differences between the land sales used as comparables and Roth’s land.

The uses to which the Roth property may be adapted, the point in time it was condemned and its location are plainly similar to that of the comparable sales. All were zoned for industrial use. Any dissimilarity goes to the weight of the evidence and not to its admissibility; the distinctions may be developed by cross-examination or otherwise. See Koberna, 396 S.W.2d at 662.

We affirm.

PUDLOWSKI, P.J., and GAERTNER, J., concur.

      . Square feet and acreage are used in property descriptions throughout the record. Variances are minimal and immaterial to the issues on appeal.

      . In In re Armory Site in Kansas City, 282 S.W.2d 464, 473 (Mo.1955) the Supreme Court recognized four factors in determining the relevance of comparables.


author: PUDLOWSKI, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael L. WATSON, Defendant-Appellant.
    No. 47871.
    Missouri Court of Appeals, Eastern District, Division One.
    March 12, 1985.

      Robert B. Ramsey, St. Louis, for defendant-appellant.
    Joseph E. Furtaw, Hillsboro, for plaintiff-respondent.
   PUDLOWSKI, Presiding Judge.

This is an appeal from a conviction for the failure to register and title a motor vehicle pursuant to Section 301.020. Appellant contends, inter alia, that the trial court erred and abused its discretion by failing to adequately advise him of the consequences of proceeding to jury trial without legal counsel and by failing to make an adequate record regarding appellant’s waiver of counsel. We reverse.

On the above state of the record, failure of appellant to include in his motion for a new trial that the trial court erred in permitting defendant to represent himself preserved nothing for appellate review. State v. Morris, 518 S.W.2d 78 (Mo.App.1974). In appropriate cases, however, Rule 30.20 authorizes the court to consider plain error even though not preserved. To invoke the plain error doctrine, it must appear that there is a sound, substantial manifestation and a clear showing that injustice or a miscarriage of justice will follow if the rule is not applied. State v. Davis, 566 S.W.2d 437, 447 (Mo. banc 1978).

The right of an accused to counsel at trial is of constitutional stature. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Sixth and Fourteenth Amendments of the United States Constitution guarantee a criminal defendant in a state proceeding the right to counsel. Absent a knowing and intelligent waiver, no person may be imprisoned unless he was represented by counsel at trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

The corollary to the above proposition is that an accused also has the constitutional right to appear pro se and defend himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), Mo. Const. Art. 1, Sec. 18(a).

Where a defendant elects to proceed pro se, the record must indicate that he was offered counsel but that he voluntarily, knowingly, and intelligently rejected the offer and waived that right. An accused should not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the accused’s comprehension of the offer and capacity to make the choice intelligently and understandably has been made. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). In Von Moltke, the plurality opinion stated at 332 U.S. 723-724, 68 S.Ct. 323:

The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused-whose life or liberty is at stake-is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.

(Footnote omitted. Emphasis ours).

A judge must make a penetrating and comprehensive examination in order to properly assess that the waiver was made knowingly and intelligently. See United States ex rel. Martinez v. Thomas, 526 F.2d 750, 755 (2d Cir.1975). The defendant should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Faretta, supra at 422 U.S. 835, 95 S.Ct. 2541.

It must be borne in mind that in the final analysis the defendant himself is the person who stands to suffer the most from an improvident choice to reject the assistance of counsel. The free choice of a competent individual is entitled to great deference in our society; however, that individual must not be allowed to proceed in an ignorance which may cause untold harm to himself and his family, and also to the integrity of our judicial system. The trial court is charged with the function of assuring that the defendant’s waiver of counsel is made knowingly and intelligently and that the record is complete so as to reflect that waiver. See Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). The state has the burden to show from the record that the defendant waived his right to counsel with a clear understanding of his rights and of the consequences. State v. Tilley, 548 S.W.2d 199 (Mo.App.1977).

In reviewing the instant record in light of the above precepts, we conclude that the record shows that the state failed to carry its burden to adequately establish that appellant knowingly and intelligently waived his right to counsel. The only evidence adduced by the state was a form signed by appellant which listed the minimum warning required by Section 600.051. The record fails to show that the trial judge determined that the defendant made a knowledgeable and intelligent waiver and failed to inform defendant of the dangers and disadvantages of proceeding pro se or made inquiry into his awareness thereof. We are reluctant to hold that a specific list of inquiries must be covered in every case. See State v. Quinn, 565 S.W.2d 665 (Mo.App.1978.) We conclude, however, that except for the unusual case, the conviction of a pro se criminal defendant will be vulnerable to reversal unless the trial court has closely followed a script covering the questions specified by Justice Black in Von Multke, supra, and our court in Quinn and Tilley, supra, and Section 600.051. We will not presume acquiescence in the deprivation of such a fundamental right, nor will waiver be presumed from the echoes of a silent record because plain error is alleged.

We must resolve the question of what relief may be accorded a pro se defendant upon a trial court’s failure to adequately advise a defendant of the dangers and disadvantages of self-representation. Since the Supreme Court has indicated that a Sixth Amendment violation, as it implicates a substantial right of a party, cannot be harmless, Chapman v. California, 386 U.S. 18 at 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and this proposition was forcefully affirmed in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), we find that the error was not harmless.

In reference to the case at bar, the burden is not on appellant to show that the waiver was less than knowing or intelligent; the burden is on the government to show from the record that the statements or circumstances at the time of the putative waiver demonstrate that appellant intelligently and understandingly waived the assistance of counsel. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Tilley, supra. The state has failed to meet its burden. We conclude that the trial court erred in failing to adequately advise the defendant of self-representation at trial and that such error in this case is plain error and that a miscarriage of justice has occurred.

Judgment reversed and remanded.

GAERTNER and KAROHL, JJ., concur.

      . In Quinn, the court, in dicta, stated that when a defendant in a criminal case informs the court that he desires to represent himself, the defendant should be advised that self-representation is unwise, that he will receive no special indulgence by the court, that he must follow the technical rules of substantive, procedure and evidentiary law, and that the prosecution will be represented by an experienced attorney. The court further stated that the trial court should make inquiry into the defendant's intellectual capacity to make an intelligent decision, should make an inquiry of his education and familiarity with legal procedures, and if there is any question as to the defendant s mental capacity, an inquiry into that should be made. The court also stated that a defendant should be made aware that he has a right to counsel at no cost if indigent, and the court should explore the nature of the proceedings and establish that the defendant knows what he is doing and his choice is made with his eyes open. And, said the court, the defendant should be informed that if there is misbehavior or trial disruption, his right of self-representation will be vacated, and he should be made aware that in spite of his efforts he cannot afterward claim inadequacy of representation. Quinn at 676, 677.