State v. Hurtt

807 S.W.2d 185, 1991 Mo. App. LEXIS 528, 1991 WL 51555
CourtMissouri Court of Appeals
DecidedApril 12, 1991
DocketNo. 16915
StatusPublished
Cited by2 cases

This text of 807 S.W.2d 185 (State v. Hurtt) 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 v. Hurtt, 807 S.W.2d 185, 1991 Mo. App. LEXIS 528, 1991 WL 51555 (Mo. Ct. App. 1991).

Opinion

FLANIGAN, Chief Judge.

A jury found defendant James Hurtt guilty of delivery of a controlled substance, § 195.2111 RSMo Cum.Supp.1990, and he was sentenced, upon findings that he was a prior offender, a persistent offender, and a class X offender to a term of 30 years’ imprisonment. Defendant appeals.

Defendant’s first point is that the second amended information, on which the case was tried, was fatally defective, and the trial court erred in ruling otherwise because the information “did not properly cite the section of the statutes fixing the penalty or punishment for the alleged violation, in violation of Rule 23.01.”

In addition to its formal portions, and its allegations of three separate prior felony convictions, the information charged that the defendant “in violation of Section 195.-211, RSMo., committed the Class B Felony of Delivery of Cocaine, a controlled substance, punishable upon conviction under Section 588.011.1(2), RSMo., in that on or about October 3, 1989, in the County of Jasper, State of Missouri, the defendant knowingly delivered to Tammy Cover, Cocaine, a controlled substance.”

The challenged information was the third one filed by the prosecutor. The original information cited, as the punishment statute, § 588.011.1(2). The correct citation would have been § 558.011.1(2). That information made no mention of prior convictions. The first amended information filed by the prosecutor repeated the erroneous citation to § 588.011.1(2), a non-existent statute, and then pleaded three prior convictions in support of its additional allegations that defendant was a prior offender and a class X offender. The challenged information, on which the case was tried, again cited the non-existent statute, pleaded the three prior convictions, and also pleaded that defendant was a persistent offender as well as a prior offender and a class X offender.

The first amended information was filed on February 22, 1990, and the challenged information was filed on February 23,1990, immediately prior to the commencement of the trial on that day.

Before the jury was selected, a conference took place among the court and the attorneys. Defense counsel informed the court that he had filed a motion to dismiss the first amended information on the ground, among others, that it did not properly cite the section of the statutes fixing the penalty or punishment. The same motion was orally addressed to the challenged information. Strangely, at no time did the prosecutor request leave to amend the challenged information so as to correct the erroneous citation. During the conference, defense counsel stated: “I’ll announce to the court with good faith and conscience to [the prosecutor] that I was certainly aware that he was going to file a Class X information.”

In denying the motion to dismiss, the court stated that the only difference between the first amended information and the challenged information was that the latter included the allegation that the defendant was a persistent offender.

An information which is substantially consistent with the form prescribed by MACH-CR is, by Rule 23.01(e), deemed to [187]*187comply with the requirements of Rule 23.-01(b), which sets forth what an information shall contain. The portion of the challenged information which pleaded defendant’s status as a prior offender, persistent offender, and class X offender did so in the manner authorized by MACH-CR 2.30.

Rule 23.01(b)4 provides that the information shall “cite the section of the statutes alleged to have been violated and the section of the statutes which fixes the penalty or punishment therefor.” Rule 23.11 reads: “No indictment or information shall be invalid, nor shall the trial, judgment, or other proceedings thereon be stayed, because of any defect therein which does not prejudice the substantial rights of the defendant.”

Although defense counsel was aware, as his motion demonstrated, that the information contained an inaccurate citation to the applicable punishment statute, he did not file a motion seeking the correct citation. See Rule 24.04(b)2. Instead, he filed a motion to dismiss on the ground that the challenged information was insufficient.

The test of the sufficiency of an indictment or information “is whether it contains all the essential elements of the offense as set out in the statute and clearly apprises defendant of the facts constituting the offense in order to enable him to meet the charge and to bar further prosecution.” State v. Strickland, 609 S.W.2d 392, 395[7] (Mo. banc 1980). See also Shive v. State, 780 S.W.2d 359, 362[3] (Mo.App.1989). The challenged information satisfies that test.

The only case cited by defendant in support of his first point is State v. Knight, 764 S.W.2d 656 (Mo.App.1988). In that case the information, although failing to set forth the statute fixing punishment, was held sufficient.

“An indictment or information is not necessarily insufficient simply because statutory references are omitted or the wrong statutes cited.” State v. LaPlant, 673 S.W.2d 782, 785[4] (Mo. banc 1984). In accordance with that principle, informa-tions which fell short of complying with Rule 23.01(b)4 have been held sufficient. Such holdings were made where the information failed to cite the statute defining the offense or the punishment statute, State v. Mitchell, 611 S.W.2d 223 (Mo. banc 1981), Shive v. State, supra, Hulstine v. State, 702 S.W.2d 120 (Mo.App.1985), the information failed to cite the punishment statute, State v. Knight, supra, Emmons v. State, 621 S.W.2d 329 (Mo.App.1981), the information cited a non-existent statute as defining the offense, Franklin v. State, 655 S.W.2d 561 (Mo.App.1983), State v. O’Toole, 619 S.W.2d 804 (Mo.App.1981), and the information failed to cite the statute defining the offense, Williamson v. State, 628 S.W.2d 895 (Mo.App.1981), and State v. Harris, 598 S.W.2d 200 (Mo.App.1980). Defendant’s first point has no merit.

Defendant’s second point is that the trial court erred in overruling defense counsel’s objection to certain portions of the closing argument of the prosecutor. Defendant contends that the prosecutor improperly “professed his personal beliefs as to the defendant’s guilt and as to controverted facts, thereby implying that his office gave him some special knowledge of guilt.”

Although defendant does not challenge the sufficiency of the evidence to support the conviction, some of that evidence is germane to defendant’s second point.

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Bluebook (online)
807 S.W.2d 185, 1991 Mo. App. LEXIS 528, 1991 WL 51555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hurtt-moctapp-1991.