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State v. Ralls5/25/1999
judgment, which is reviewed in a timely manner, is the confirmation. As such, for the purposes of this appeal the judgment of the drug court commissioner, having been timely confirmed by the circuit court Judge, is the appealable entry.
The second procedural matter to be addressed before considering the substantive issue is whether the constitutional question has been properly preserved. The defendant's substantive point on appeal is that the drug court commissioner lacked subject matter jurisdiction in that Section 478.466 is unconstitutional because it violates the principle of separation of powers. The defendant did not challenge the jurisdiction of the drug court commissioner until after the jury had returned its guilty verdict. It was when the defendant filed his motion for new trial that he raised the subject of the court's jurisdiction for the first time.
Generally, a constitutional question is waived if it is not raised at the earliest opportunity. A long line of cases, commencing with State v. Mackey, 259 S.W. 430 (Mo. 1924), have held that the challenge to the constitutionality of the law under which the defendant was charged comes too late if not raised "at the first opportunity in the course of an orderly procedure." State v. Cox, 259 S.W. 1041 (Mo. 1924). See also State v. Dansforth, 654 S.W.2d 912, 917 (Mo. App. 1983). The defendant's challenge to the constitutionality of Section 478.466 was not made in a timely manner. Thus, the question is whether his failure to object timely results in a waiver of the issue.
The defendant responds that subject matter jurisdiction can be challenged for the first time on appeal. See State v. Parkhurst, 845 S.W.2d 31, 35 (Mo. banc 1992)(ruling that "a defendant may for the first time on appeal raise . . . the issue of the trial court's jurisdiction to try the class of case of which defendant was convicted"); Merriweather v. Grandison, 904 S.W.2d 485, 489 (Mo. App. 1995)(finding that "jurisdictional defects are not, and cannot, be waived").
The state claims that a constitutional question is waived if it is not raised at the earliest opportunity, citing State ex rel. York v. Daugherty, 969 S.W.2d 223, 224 (Mo. banc 1998). In York, the issue was the "rarely applied theory of prospective application of a constitutional ruling" with regard to whether a judgment was effective in 1996, when the family court commissioner unconstitutionally entered a judgment, or in 1998, when the circuit court entered an order confirming the prior judgment. 969 S.W.2d at 224. The Missouri Supreme Court reiterated that constitutional violations are waived if not raised at the earliest opportunity. The Court also noted that " ne exception to the waiver doctrine usually noted is where there was a lack of subject matter jurisdiction in the forum where the waiver occurred." Id. at 225. The York court went on to determine that the jurisdictional argument was waived in that matter, because the parties assumed the burdens and benefits of the commissioner's 1996 order and, as a result, the absence of jurisdiction did not have "a conclusive effect on the rights of the parties." Id.
It remains that subject matter jurisdiction can, as a general rule, be raised at any point, including on appeal. In this case we believe that this rule is applicable, and the defendant may now assert his constitutional claim on appeal. State v. Parkhurst, 845 S.W.2d at 35; Brown v. State, 452 S.W.2d 176, 179 (Mo. 1970); Kansas City v. Stricklin, 428 S.W.2d 721, 724-25 (Mo. banc 1968); Stidham v. State, 963 S.W.2d 351, 353 (Mo. App. 1998).
This brings us to the defendant's sole issue on appeal-whether this court has jurisdiction to determine the merit
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