State ex rel. Parton v. Eighmy

524 S.W.3d 204, 2017 WL 3469285, 2017 Mo. App. LEXIS 722
CourtMissouri Court of Appeals
DecidedJuly 21, 2017
DocketNo. SD 34887
StatusPublished
Cited by2 cases

This text of 524 S.W.3d 204 (State ex rel. Parton v. Eighmy) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Parton v. Eighmy, 524 S.W.3d 204, 2017 WL 3469285, 2017 Mo. App. LEXIS 722 (Mo. Ct. App. 2017).

Opinion

GARY W. LYNCH, J.

This case arises from the State’s prosecution against Nanette Jo Parton (“Relator”) of an alleged stealing offense in violation of section 570.080.1 Relator filed a motion to dismiss the case because the prosecution was not commenced within one year of the alleged date of the offense by the filing of an information as required by section 586.036.5. This motion was denied by Respondent. Relator petitioned this court for a permanent writ of prohibition or mandamus requiring Respondent to dismiss the case. A preliminary writ of prohibition was issued directing Respondent to file an answer to the petition. The State filed an answer and brief on behalf of Respondent.

Standard of Review

A writ of prohibition is appropriate whenever: 1) the trial court exceeds its personal or subject matter jurisdiction; 2) the trial court exceeds its jurisdiction or abuses its discretion to such an extent that it lacks the power to act as it did; or 3) there is no adequate remedy by appeal for the party seeking the writ and the “aggrieved party may suffer considerable hardship and expense as a consequence of the erroneous decision [of the lower court].”

State ex rel. Steeley v. Oswald, 147 S.W.3d 81, 82 (Mo. banc 2004) (quoting State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo. banc 1994)). In a prohibition proceeding, a relator has the burden to show that the trial court exceeded its authority, and “that burden includes overcoming the presumption of right action in favor of the trial court’s ruling.” State ex rel. Dixon v. Darnold, 939 S.W.2d 66, 69 (Mo.App. 1997).

Factual and Procedural Background

The State initiated the underlying criminal case by filing in the trial court a document denominated as “FELONY COMPLAINT” on October 8, 2013. The State thereafter filed a document denominated as “FELONY INFORMATION” on April 2, 2014. Both documents alleged that Relator,

in violation of Section 570.030, RSMo, committed the class B felony of stealing, punishable upon conviction under Section 558.011, RSMo, in that on or between September 9, 2012 and March 13, 2013, in the County of Taney, State of Missouri, [Relator] appropriated U.S. currency of the value of at least twenty-five thousand dollars, which property was in the charge of Colonnade / Grand regency Resorts, and [Relator] appropriated such property without the consent of Colonnade / Grand Regency Resorts and with the purpose to deprive it thereof.

Over two years later, on September 30, 2016, Relator moved to dismiss the case because stealing in violation of section 570.030 is a misdemeanor, section 556.036.2(2) requires that prosecutions for misdemeanors must commence within one year of the offense, according to section 556.036.5 a prosecution for a misdemeanor is commenced when the information is [206]*206filed, and the document denominated “FELONY INFORMATION” filed -on April 2, 2014, was not filed within one year of the expiration of the charging period— March 13, 2013. The trial court denied Relator’s motion.

Discussion

Consistent with her motion to dismiss in the trial court, Relator’s only point relied on states:

Relator is entitled to a writ of prohibition to prohibit Respondent, the Honorable Eric Eighmy, from taking any further action in her case; other than to dismiss it with prejudice, because Respondent is without authority to' take any action in her case in that the statute of- limitations in this case has already run since Relator’s charge is a misdemeanor and the Information in Relator’s case was filed more than one year after .the alleged incident.

In State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016), the State argued that the defendant’s charge of stealing could be enhanced from a class A misdemeanor to a class C felony because the property'stolen (a firearm) was designated as eligible for enhancement in section 570.030.3. Bazell, 497 S.W.3d at 266. Our supreme court disagreed because

the felony enhancement provision, by its own terms, only applies if the offense is one “in which the value of the property or services is an element.” Stealing is defined in section 570.030.1 as “appropriating] property or services of another with the purpose to deprive him or her thereof, either without his consent or by means of deceit or coercion.” The value of the property or services appropriated is not an element of the offense of stealing.

Id. (emphasis added). Section 570.030.3 enhancements, therefore, are inapplicable to the offense of stealing under section 570.030.1, regardless of the particular provision of section 570.030.3 under which enhancement is sought. State v. Smith, SC 95461, 522 S.W.3d 221, 230-31, 2017 WL 2952325, at *7 (Mo. July 11, 2017).

Because the misdemeanor offense of stealing under, section. 570,030.1 may not be enhanced to a felony, any-prosecution of that offense must be commenced within one year. Section 556.036.2(2). “A prosecution is commenced for a misdemeanor ... when the information is filed[‘.]” Section 5561036.5; see also Rule 21.01.2 The substantive requirements for a misdemeanor information are set forth in Rule 23.01 that provides, in pertinent part:

(a) The ... information shall be in writing, signed by the .prosecuting attorney, and filed in the court having jurisdiction of the offense....
(b) The .., information shall:
(1) State" the name of the defendant or, if not known, designate the defendant by any name or description by which the defendant can be identified with reasonable certainty;
(2) State plainly, concisely, and definitely the essential facts constituting the elements of the offense charged, including facts necessary for any enhanced punishment;
(3) State the date and place- of the offense charged as definitely as can be done. If multiple counts charge the same offense on the same date or during the same time period, additional facts or details to distinguish the counts shall be stated;
(4) Cite the statute alleged -to have been violated and the-statutes that fix the penalty or punishment therefor; and
[207]*207(5) State the name and degree, if any, of the offense charged.
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Rule 23.01(a) and (b).

Relator argues that the. document denominated as “FELONY INFORMATION” and filed on April 2, 2014, was filed more than a year after the alleged offense and therefore the trial court was without authority to hear the case.

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Cite This Page — Counsel Stack

Bluebook (online)
524 S.W.3d 204, 2017 WL 3469285, 2017 Mo. App. LEXIS 722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-parton-v-eighmy-moctapp-2017.