PEOPLE'S LEGAL FRONT

BECAUSE THESE ARE NOT THE TRADE SECRETS OF ATTORNEYS

LAWS MOTIONSLINKS
In The Missouri Court of Appeals
Southern District
Robin C. McDermott,                                                  )                                 Case No: 398CM1214
Relator                                                                         )
                                                                                     )                 Cause No:________________
Vs.                                                                                )
                                                                                     )
The Honorable Max Bacon                                           )
Greene County Associate Circuit Court                        )
Division 21                                                                   )
Respondent                                                                  )
__________________________________________)


Petition for Writ of Mandamus or in the Alternative, a Writ of Prohibition

COMES NOW, Relator Robin C. McDermott, pursuant to Rules 94 and 97 and petitions this Court to issue a Writ of Mandamus to order the Honorable Max Bacon to enforce upon the Greene County Prosecutor, J. Ronald Carrier, Supreme Court Rule 23.01 (b) of the Rules of Court to compel said Prosecutor to file the information in the above-referenced case in proper legal form, or in the alternative, for this Court to issue a Writ of Prohibition to the Honorable Max Bacon from proceeding against Relator in the above-referenced case for lack of jurisdiction resulting from failure of the Prosecutor to file and issue an information in compliance with the Rules of Court. In support of her petition Relator states:

1. On 24 February 98 Greene County, Missouri Prosecutor, J. Ronald Carrier, by and through his assistant prosecuting attorney, Johnnie J. Burgess, file the attached information creating the Greene County case number 398CM1214 charging Relator with a violation of section 565.083 RSMo.

2. The information fails to state any facts constituting theoffense charged as required by Rule 23.01 (b)(2) and is therefore defective.

3. The information fails to state the elements of alleged violation and is therefore defective.

4. The information fails to state any Counts or Charges and is therefore defective.

5. The information fails to state the time and place that offense occurred as require by Rule 23.01 (b) (3) but is a generic recitation without specific elements disallowing the possibilty of an affirmative defense is is therefore defective.

6. The information fails to state the subsection of RSMo 565.083 that Relator is alleged to have violated and is therefore defective.

7. The information fails to characterize the elements of the offense with sufficient particularity to give notice to the Relator of the acts she is alleged to have committed.

8. The information is not sufficiently specific so as to determine the admissibility of evidence.

9. The information is reaquired to state the allegations with reasonable certainty and the essential facts that constitute each element of the offense so that the Relator does not have to gues or speculate as to the meaning of the allegations.

10. The information fails to inform the Relator of charges against her so that she can adequately prepare a defense and protect herself from double jeopardy.

11. The Relator has filed a motion for a Bill of Particulars which has been overruled by the Court. Repeated attempts to move the Court to compel the Prosecutor to amend the information have been met with repeated resistance and a lassez-faire attitude concerning the Courtís responsibility for the correct application of the law, substantially prejudicing the right of Relator to a fair trial and a full exercise of her due process rights.

12. An invalid or fatally defective information precludes the Court from acquiring jurisdiction over the Relator and therefore has no authority to conduct a trial.

Arguments in Support of Writs of Mandamus

FACTS

On 23 January 1998 at approximately 1:12 a.m. Relator was arrested at her home on a charge of obstructing Springfield Police Officer T.D. Royal in the performance of his duties by being verbally aggressive in that Relator questioned a warrantless search of a vehicle parked on her private property which was conducted without permission and performed over the objections of Relator. During the arrest Relator was bitten by Springfield Police Department canine and was subsequently taken by paddy wagon by officer Owens to Cox North Hospital for treatment of multiple puncture wounds by the canine and mutiple abrasions and contusions from being thrown off of her front porch by officer Royal, after which Relator was again transported by paddy wagon to the Springfield Police Headquarters by officer Owens. At this time she was informed of an additional charge of assaulting a police officer although she was not told on who, when or how this assault had occurred. The defective information presented to Relator at arraignment on 23 March 1998 stated that Springfield Police officer John A. Smith was the claiming victim of said assault. The information fails to state in what manner Relator "knowingly attempted to have physical contact with Officer John A. Smith without his permission", or when or where this "knowing" attempt took place except sometime during the twenty-four hours of 23 January 1998 and somewhere in Greene County.

Since the arrest Relator has timely moved for a Bill of Particulars and has repeatedly asked the Court to compel the State to bring the information into compliance with the law. In every case the Court has denied Relatorís requests.

On 4 November 1998 Relator moved the court to Dismiss for Failing to State a Charge. On 12 November 1998 the Honorable Max Bacon denied said motion. Relator now comes before this Court seeking orders to cause the Honorable Max Bacon to comply with the Missouri Supreme Court Rules of Court.

AUTHORITY

Mandamus will lie for an abuse of discretion where discretion has been exercised arbitrarily and capriciously or where discretion has been exercised in bad faith, Peavey Co. V. Corcoran 714 S.W.2d 943. In such instances the abuse amounts, in effect, to no discretion. Mandamus is warranted when the abuse is clear or results in a manifest injustice, Reis V. Nangle 349 S.W.2d 943. Mandamus will lie when an official refuses to act when he has a duty to act and refuses to do so.
 
 

Forum email Index Home
[Forum] [EMail] [Index] [Home]

Nolo Press Self Help Law Books
Self Help Law Library

Versus Law Legal Library
Case Law $7/Month 50 States + Fed
I use this service.


We push the limits on discount hosting!

--------------------