Opinion
No. SD 24666
July 17, 2002
Appeal from the Circuit Court of Douglas County, Hon. John Moody.
Steven Privette and Kelly Michael Bosserman, Counsel for Appellant.
Nicole E. Gorovsky, Counsel for Respondent.
Ricky Lynn Emery ("Appellant") appeals from his conviction and sentence for driving while intoxicated and assault in the second degree. Appellant contends that he was improperly sentenced as a prior and persistent offender without supporting evidence. The state agrees. Appellant also argues that the simultaneous conviction for driving while intoxicated and second degree assault violates principles of double jeopardy. The state also agrees to this contention. Finding reversible error, we affirm in part, reverse in part, and remand for resentencing.
Appellant and Bob Fullington were at a party at Norma Gean's ("Gean") house drinking alcohol. When they were leaving the party, Gean took the keys from Appellant because she believed he was too drunk to drive. Fullington then got in the driver's seat and he and Appellant drove off. Fullington testified that they drove to a cafe a couple of blocks away, where they switched positions so that Appellant was driving. While travelling on Route 95, Appellant ran a stop sign and hit a car travelling on the crossroad, injuring the driver.
As Appellant does not dispute the sufficiency of the evidence on which the conviction was based, we view the facts in the light most favorable to the verdict. State v. Shurn , 866 S.W.2d 447, 455 (Mo.banc 1993).
Appellant was charged under section 577.010 with driving while intoxicated ("DWI"), under section 302.020 with driving a motor vehicle without a valid license, and under section 565.060 with second degree assault. He was also charged as a prior and persistent offender under section 558.016 and 557.036.4 for the reason "that he has pleaded guilty to two or more felonies committed at different times." The information described two instances where Appellant allegedly pled guilty to felony DWI, one instance in 1991 and one in 1997.
All references to statutes are to RSMo 2000, unless otherwise indicated.
Section 558.016 states in relevant part:
1. The court may sentence a person who . . . has been found guilty of an offense to a term of imprisonment as authorized by section 558.011 or to a term of imprisonment authorized by a statute governing the offense, if it finds the defendant is a prior offender or a persistent misdemeanor offender, or to an extended term of imprisonment if it finds the defendant is a persistent offender[.]
2. A " prior offender" is one who has pleaded guilty to or has been found guilty of one felony.
3. A " persistent offender" is one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times.
Section 557.036.4 states in relevant part:
4. If the defendant is found to be a prior offender, persistent offender . . . as defined in section 558.016, RSMo:
(1) If he has been found guilty of an offense, the court shall proceed as provided in section 558.016, RSMo; or[.]
The jury convicted Appellant of DWI and second degree assault. The charge of driving without a license was dismissed. Because Appellant was alleged to be a persistent offender, the DWI conviction was a class D felony. section 577.023.3. The assault was a class C felony. Section 565.060.3. Because Appellant was considered to be a persistent offender, the judge sentenced Appellant rather than allowing the jury to recommend a sentence. See section 557.036 and 558.016.1. Appellant was sentenced to seven years imprisonment on the assault conviction, and six months imprisonment on the DWI conviction, to be served consecutively.
Appellant has four points on appeal that can be grouped into two general claims of error. First, Appellant contends there was no evidence supporting a finding Appellant was a prior or persistent offender; thus, the sentencing of Appellant founded on his being a prior or persistent offender for either charge was erroneous. This claim of error was not preserved for appellate review in that it is being raised for the first time on appeal. See State v. Lorenze , 592 S.W.2d 523, 527 (Mo.App.S.D. 1979). The sufficiency of the sentence, however, is a jurisdictional question that must be reviewed by this court even if not properly preserved. State v. Greer , 879 S.W.2d 683, 684 (Mo.App.W.D. 1994); Rule 30.20. We find that review is appropriate.
All rule references are to Supreme Court Rules (2002), unless otherwise stated.
The state admits that no evidence indicating Appellant was a prior or persistent offender was presented. Thus, there was no basis on which to sentence Appellant as a prior or persistent offender, and doing so was error. Greer , 879 S.W.2d at 684. The sentences imposed violated Appellant's due process rights as they were based on a materially false foundation. State v. Herret , 965 S.W.2d 363, 364 (Mo.App.E.D. 1998). The error concerns only the punishment of Appellant, not his guilt. State v. Cullen , 39 S.W.3d 899, 904 (Mo.App.E.D. 2001). This error entitles Appellant to reconsideration of his punishment in light of the true facts. Herret , 965 S.W.2d at 364.
Appellant argues that any remand for resentencing is inappropriate for several reasons, and that a new trial should be ordered instead. First, he argues that the time that has passed since the verdict was rendered requires a new trial. No authority is cited with his proposition. Without authority, and because we discern no reason why the time that has passed herein should prevent following the case law, his argument is not persuasive. Sapp v. State , 22 S.W.3d 746, 747 (Mo.App.W.D. 2000) (arguments without authority or an explanation as to why no authority is available are deemed abandoned). Similarly, he contends that the jury was possibly contaminated by hearing that Appellant was charged with a felony DWI rather than a misdemeanor which would have been the highest charge available if Appellant did not have prior DWI convictions. Again, Appellant cites no authority for this proposition.
Appellant also argues that the case cannot be remanded on the sentencing phase alone because this is contrary to State v. Cullen , 39 S.W.3d 899 (Mo.App.E.D. 2001). Appellant points to language in this case that it is error for a trial court to allow the prosecution to present proof of a defendant's offender status after the case is submitted to the jury. See Cullen , 39 S.W.3d at 906. While the case does articulate that principle, it further explains that this error may be harmless error, given the circumstances. Id . Missouri courts have consistently allowed an appellate court in non-capital proceedings to remand the case for determination of persistent offender status and resenting. S ee Cullen at 904. Remanding for re-sentencing after the state has the opportunity to present offender status evidence cures any prejudicial harm to Appellant. Cullen does not require us to hold otherwise.
This same error has been corrected by the appellate court's reversal and remand of the case for resentencing. See Greer, 879 S.W.2d at 684; Herret , 965 S.W.2d at 365. Because only sentencing is affected, this solution does not violate double jeopardy in a non-capital case. Cullen , 39 S.W.3d at 904. Upon remand the state may present whatever evidence necessary to establish Appellant's offender status. Greer , 879 S.W.2d at 684; Herret , 965 S.W.2d at 365. If the state establishes Appellant as a prior or persistent offender, the trial court is to sentence him accordingly. Id . If, however, the state is not able to prove the requisite prior convictions, then the conviction is set aside and a new trial shall be granted. Herret , 965 S.W.2d at 365.
We are addressing only the conviction for second degree assault. The conviction for DWI is reversed for the reasons set out herein.
Appellant also claims that there was error in the trial court sentencing Appellant rather than the jury. This point is moot with our decision to remand the case as explained above. The applicable statutes provide that the trial court exclusively determines punishment if Appellant is proven to be a prior or persistent offender. Section 557.036; section 558.016.1; Herret , 965 S.W.2d at 365.
Appellant's next claim of error is that double jeopardy was violated by his being convicted for DWI and assault. As with his arguments concerning his offender status, this claim was not properly preserved. Nonetheless, we choose to review the claim for plain error as it appears that manifest injustice affecting substantial rights of Appellant occurred. See State v. Parker , 856 S.W.2d 331, 332-33 (Mo.banc 1993) (internal citation omitted).
The right to be free from double jeopardy is based upon the Fifth Amendment, which states, ". . .nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The right is applicable to the states through the Fourteenth Amendment. Benton v. Maryland , 395 U.S. 784, 794 (1969). The right protects against successive prosecutions for the same offense after acquittal or conviction, as well as multiple punishments for the same crime. State v. McTush , 827 S.W.2d 184, 186 (Mo.banc 1992). One of the elements of second degree assault as charged in this case is driving a vehicle while in an intoxicated condition. Section 565.060.1(4). Thus, convicting a defendant of DWI and second degree assault based on the same facts violates double jeopardy. Rost v. State , 921 S.W.2d 629, 634 (Mo.App.S.D. 1996).
The state agrees that the conviction for both DWI and assault in this case violated double jeopardy. The trial court plainly erred in allowing Appellant to be convicted on both the DWI and assault charges. Appellant's conviction for DWI is vacated. The conviction for Assault in the Second Degree is affirmed; however, the case is remanded for resentencing and to give the state an opportunity to prove Appellant's prior offenses.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Garrison, P.J., and Prewitt, J., concur.