State v. AustinState v. Austin
- Reporters:
- ,
- Before:
- Shrum
Thе defendant, Markel Dean Austin, was convicted by the court of driving while intoxicated in violation of
FACTS
From the legal file and the transcript of the defendant’s December 17, 1992, trial, we summarize facts germane to the defendant’s points on appeal.
On May 22, 1992, at approximately 10:15 p.m., Missouri State Highway Patrol Sergeant Ronald T. Berry observed a pickup truck operated by the defendant weaving across the center line and onto the shoulder of Missouri Highway 51 in Butler County. Berry stopped the pickup truck, administered field sobriety tests to the defendant, and transported him to the Butler County jail, where Berry completed a multi-copy, preprinted Uniform Complaint & Summons, substantially similar in form and content to Supreme Court Form 37.A. A Uniform Complaint & Summons is commonly referred to as “a trаffic ticket.” For convenience, we will refer to the one involved in this case as “the ticket.”
Berry used an “x” on the preprinted ticket tо indicate the defendant “Did unlawfully operate” his vehicle. In the portion of the ticket that calls for a description of the violation, Berry wrote, “Intoxicated driving 1st offense,” and indicated the defendant’s actions were “in violation of 577.010 RSMo” and he placed an “x” in the box next to the term “DWI/BAC.” Following this description of the violation and beneath the pre-printed statement, “The above complaint is true as I verily believe,” is the signature “R.T. Berry”. Beneath Berry’s signature are preprinted “Sworn to before me this date” and “Name & Title,” which are followed resрectively by the signature “C Bowman, D.C.” and “5-26-92.” Berry, however, testified he did not take an oath concerning the ticket. At the bottom of the ticket is the рreprinted “On information, undersigned prosecutor complains and informs court that above facts are true as he verily believes” followed by the signature “Shawn P. Ellis.”
Berry gave one copy of the ticket to the defendant, sent one copy to the highway patrol,1 and retainеd a copy. Berry was uncertain of his disposition of the “original” ticket, testifying that it was mailed from Troop E headquarters or that he or another highway patrol officer delivered it “to the clerk in the [Butler County] prosecutor’s office or the clerk in the judge’s office.”
The legal file contains a photocopy of the preprinted docket sheet from Butler County.2 In the space denominated “Date Filed” is tyрed “5/26/92.” A portion of the docket sheet labeled “Origin of Case” contains several preprinted options, including “1._In-formation/Complaint.” In the blank space of that option is typed an “x,” and the word “complaint” is stricken out. The lower two-thirds of the docket sheet is devoted to “Documents Filed/Action Taken in Case.” This section contains no entry concerning the filing of an information.
DISCUSSION AND DECISION
On appeal, the defendant presents three arguments to support his contention *336that the trial court lacked jurisdiction to convict him. First he claims an absence of jurisdiсtion because “the information charging the offense had not been filed with the court.”
As the defendant points out, misdemeanors shall be prosecuted by indictment or information.
An information is filed when it is deposited with the clerk of the court. State v. Havens, 177 S.W.2d 625, 630[16] (Mo.1944); Durley v. State, 685 S.W.2d 284, 286[3] (Mo.App.1985). The defendant makes no argument the information was not deposited with the clerk. Rather he relies solely on the absence under the heading “Documents Filed/Action Tаken in Case” of an entry concerning filing of the information. This argument has no merit. Stamping an information or otherwise marking it “filed” is but evidence of the fact of its having been deposited. Havens, 177 S.W.2d at 630[16]; Durley, 685 S.W.2d at 286[2], We believe a handwritten entry on the preprinted docket sheet under the heading “Documents Filed/Action Taken in Case” is of the same nature as a clerk’s stamp on the face of a document: it would have been evidence of filing but not the filing itself.
When we look to other portions of the Butler County docket sheet, we find evidence of the filing of the information. In the section “Dаte Filed” at the top of the form is the date “5/26/92.” The “Origin of Case” section indicates the case originated by way of an information.
Relying on Rulе 21.04(e), which requires, “A complaint must be in writing and shall ... [b]e verified by oath or affirmation of the complainant,” the defendant next argues that the information did not invoke the court’s jurisdiction because patrol sergeant Berry, according to his own testimony, did not verify his complaint.
A flaw in this argument is its premise that the information was based on a complaint by Berry. It is true that Rule 21.02 permits a prosecutor to file a misdemeanor informatiоn based on a verified complaint; however, the rule also permits the prosecutor to base the information on “his own knowledge or information and belief....” Here, the prosecutor signed the information upon his own information and belief. Berry’s complaint, verified or not, was surplusage. Clifford, 617 S.W.2d at 103.
The defendant next contends that the “ticket” issued by Berry was insufficient as an information because it did not state facts constituting the оffense as required by Rule 21.04(c). He charges that Berry’s “description of the violation does not allege any facts that the Defendant was оperating a motor vehicle, or that he was doing so while in an intoxicated or drugged condition, which are required by
Not so. The ticket as сompleted by Berry alleges that the defendant unlawfully operated his motor vehicle, it describes the violation as “intoxicated driving 1st offеnse,” and it advises that the conduct was in violation of
In State v. Primm, 785 S.W.2d 314 (Mo.App.1990), the Eastern District considеred an argument similar to the one before us. As the Primm court stated, “Defendant *337was sufficiently apprised of driving while under the influence of alcohol. Defendant’s remedy wаs to file a bill of particulars. Rule 23.04. He did not. By failing to do so, he waived any right to raise the issue on appeal.” 785 S.W.2d 314[3],
We affirm the judgment.
PARRISH, C.J., and MONTGOMERY, J., concur.
Notes
. Presumably highway patrol headquarters in Jefferson City, although Berry’s testimony is unclear.
. The case originated in Butler County and was transferred to Ripley County on the defendant’s motion for a change of venue.