State v. Shepherd

633 S.W.2d 206, 1982 Mo. App. LEXIS 3529
CourtMissouri Court of Appeals
DecidedApril 6, 1982
DocketNo. 31728
StatusPublished
Cited by8 cases

This text of 633 S.W.2d 206 (State v. Shepherd) 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. Shepherd, 633 S.W.2d 206, 1982 Mo. App. LEXIS 3529 (Mo. Ct. App. 1982).

Opinion

LOWENSTEIN, Judge.

Defendant was convicted by a jury of the offense of stealing without consent in violation of § 570.030.1 The jury assessed punishment at seven years imprisonment. The court found defendant to be a persistent offender within the meaning of § 558.016 and enhanced the sentence from the term recommended by the jury to a total of ten years imprisonment.

Defendant relies on four points in which he argues: (1) the instructions submitted by the court were defective for failing to give the jury the option of assessing a fine in lieu of, or in addition to, a term of imprisonment; (2) there existed a fatal variance between the dates of defendant’s prior convictions as alleged in the amended information and the dates as established by the state’s proof; (3) the court failed to make “specific findings” as to the existence of a basis for an enhanced sentence; and (4) the court erred in submitting Instruction No. 6, based upon MAI-CR2d 2.60, in that it led the jury to believe that they would set the maximum term of imprisonment to be served, not the court.

[208]*208Defendant presents no challenge to the sufficiency of the evidence, so a lengthy recitation of the facts is unnecessary. The evidence shows that on February 20, 1979, Larry Dennis left his automobile with the Isom Brothers Polish Shop in Kansas City, Missouri, to be cleaned. Defendant, an employee of the shop on that date, was that evening seen driving the Dennis automobile out of the shop without permission. One month later, defendant and two other persons were stopped for speeding in the same vehicle on Interstate 35 in Davies County, Missouri. Upon determining that the vehicle was stolen, a patrolman placed defendant under arrest and escorted him to a sheriff’s office where he confessed to stealing the vehicle.

Defendant first charges as error the submission to the jury of verdict directing Instruction No. 5 and Instruction No. 6, because, he urges, these instructions failed to inform the jury as to the full range of authorized punishment. Verdict directing Instruction No. 5 (MAI-CR2d 24.02.1) informed the jury as to the range of punishment it could assess in the form of imprisonment, but said nothing about a fine. Instruction No. 6 (MAI-CR2d 2.60) further informed the jury that upon a finding of guilt the court could sentence defendant to a term of imprisonment not to exceed that assessed by the jury, the payment of a fine in accordance with applicable statutes, or both a term of imprisonment and payment of a fine.

Defendant alleges that the failure of the pattern instructions to inform the jury that the statutes authorize a fine or a combination of a fine and a term of imprisonment prevented “the jury from assessing and declaring a fine or a fine and a term of imprisonment as the punishment in their verdict.” Defendant bases his argument upon § 557.036.2, which requires the trial court to instruct the jury “as to the range of punishment authorized by statute and upon a finding of guilt to assess and declare the punishment as part of their verdict.”

This precise issue has been considered and rejected in State v. Van Horn, 625 S.W.2d 874 (Mo.1981), wherein the court declared that the above-quoted language of § 557.-036.2 “must necessarily refer only to the punishment which the jury is authorized by statute to determine and declare,” i.e. a term of imprisonment. Id. at 877. Therefore, it is not required that the jury be instructed that it could recommend a fine, as only the trial court, and not the jury, is empowered by statute to assess a fine in lieu of, or in addition to, a term of imprisonment. Id. at 878.2 It is clear from Van Horn that defendant cannot prevail upon his first assignment of error.

Defendant next argues that the trial court was precluded from enhancing his sentence as a persistent offender pursuant to § 558.016 because of a variance between the dates of defendant’s prior convictions as alleged in the amended information and the dates established at the sentencing hearing. This argument is without merit, as it is based upon a misreading of the exhibits introduced by the state which established defendant’s prior convictions.

The amended information alleged that on January 20, 1964, defendant pleaded guilty to a charge of forgery and was sentenced to three years imprisonment, and that on January 30,1964, defendant pleaded guilty to a charge of burglary in the second degree and was sentenced to three years imprisonment. At the sentencing hearing, the trial court received into evidence copies of judgments which reflected that defendant had in fact been convicted on January 30, 1964, of the felonies as alleged in the amended information.

In arguing that his prior convictions occurred on January 16, rather than January [209]*20930,1964, defendant has simply misread the state’s exhibits, in particular the first line of each, which reads as follows:

“BE IT REMEMBERED, that on this, the 30th day of January, 1964, the same being the 16th day of the regular January Term, 1964....”

The exhibits received by the trial court clearly show that defendant’s prior convictions were entered on January 30,1964, the same date alleged in the amended information, so that the trial court did not err in imposing an extended sentence.

Defendant’s third point is that the trial court erred in imposing “an extended term of imprisonment without first making specific findings of the existence of the basis for such an extended term.” Section 558.016.1 empowers the trial court to sentence defendant to an extended term of imprisonment if he is found to be a “persistent offender.” A “persistent offender” is defined by § 558.016.2 as an individual “who has been previously convicted of two felonies committed at different times and not related to the instant crime as a single criminal episode.” The version of § 558.-021.1 in effect at the time of trial3 provides that the court “shall not impose an extended term under § 558.016 unless”

(1) The indictment or information, original, amended or in lieu of an indictment, pleads all essential facts warranting imposition of an extended term; and
(2) After a finding of guilty or a plea of guilty, a sentencing hearing is held at which evidence establishing the basis for an extended term is presented in open court with full rights of confrontation and cross-examination, and with the defendant having the opportunity to present evidence; and
(3)The court determines the existence of the basis for the extended term and makes specific findings to that effect.

It is clear that the requirements of subsections (1) and (2) have been met. Defendant has not challenged the existence or validity of the two prior felony convictions, copies of which were received into evidence at the sentencing hearing. Defendant’s argument relates solely to the sufficiency of the court’s “specific findings” concerning the applicability of the provisions of § 558.-016 allowing an extended sentence.

Following the state’s tender of copies of defendant’s prior convictions, the court stated:

“The exhibits are received. The Court does find that the Defendant is a persistent offender within the meaning of Section 558.016 of the statutes, and entitled to treatment as such.”

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Bluebook (online)
633 S.W.2d 206, 1982 Mo. App. LEXIS 3529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shepherd-moctapp-1982.