Criminal Law

Ellen H. Flottman, Esquire

Sufficient evidence to support trial court’s finding that arresting officer articulated a reasonable suspicion that criminal activity was afoot when she stopped and conducted a Terry stop. State v. Norfolk, No. 92252 (Mo. banc., June 12, 2012), Fischer, J.

Defendant appeals his convictions of carrying a concealed weapon and possession of marijuana, following a bench trial.

Held: Affirmed. 

Value is an element of the stealing statute, therefore, despite a change in the language of § 570.030, stealing is a class C felony where the property appropriated is a credit card or letter of credit. State v. Passley, No. 31302 (Mo. App., S.D., June 7, 2012), Lynch, J.

Defendant appeals his conviction and sentence as a prior and persistent offender on the class C felony of stealing following a bench trial.

Held: Affirmed.  

Placement in the Sex Offender Assessment Unit is participation in a 120-day program for purposes of  § 559.115.3, therefore Relator should have been released after successful completion since the court did not conduct a hearing within 120 days of his sentence to determine whether there had been an abuse of discretion by the Board of Probation and Parole. State ex rel. Valentine v. Orr, No. 92434 (Mo. banc., June 12, 2012), Draper, J.

Relator petitioned for a writ of mandamus, asserting that the circuit court abused its discretion in denying his release on probation from a 120-day program after the court’s jurisdiction had run.

Held:  Preliminary writ made permanent.

Rosalynn Koch, Esquire

Entering through the unlocked door of a parking garage open to the public is not burglary; but defendant could be convicted of resisting a lawful detention when the officer detained him because he ran up the steps of the garage and did not drive away after a reasonable time. State v. Richie, No. 96753 (Mo. App., E.D. June 5, 2012), Richter, J.

Defendant ran up the stairs of a parking garage. When he did not drive out after ten minutes, the police were called. The officers approached the defendant, and he ran off and hid. The defendant was convicted of burglary and resisting a lawful detention.

Held:  Affirmed in part, reversed in part. The garage was open to the public and access was not explicitly limited to patrons. Although the defendant argued that the officer lacked reasonable suspicion to support a lawful detention, the officer need not be detaining the defendant for any particular offense.

A prior offender finding based upon a quashed information becomes a nullity, and when the state filed an amended information at the end of the evidence, without pleading prior offender status, the defendant should have been sentenced by the jury. State v. Jackson, No. 73323 (Mo. App., W.D. June 5, 2012), Welsh, J.

The state charged the defendant as a prior offender, and the court made the requisite findings before trial. Before jury instructions were given, the state filed amended information, inadvertently omitting the prior convictions. The judge sentenced nevertheless determined sentence. The state later attempted to correct the deficiency by filing other information.

Held:  Affirmed in part, remanded for resentencing. The amended information superseded the earlier information, nullifying the court’s prior offender finding. The second amended information did not save the sentence because findings must be entered before the case is submitted to the jury.

Failure to inform defendant of the mandatory minimum punishment for an offense may be ineffective assistance of counsel when the defendant consequently rejects a favorable plea offer, but defendant was not prejudiced as he was aware of the maximum punishment and his erroneous beliefs about the sentence that he would actually receive if he stood trial were not due to any misinformation from counsel. Williams v. State, No. 96605 (Mo. App. E.D., June 12, 2012), Gaertner, J.

The defendant filed a Rule 29.15 action, alleging that had counsel informed him of the ten year minimum sentence for robbery he would have accepted the state’s plea offer.

Held:  Affirmed. The plea process was a critical stage requiring effective counsel, and knowing the mandatory minimum was necessary for evaluating a plea offer. But the defendant understood that he faced up to thirty years or life imprisonment and his erroneous belief that he would be sentenced to no more than seven years was not due to any advice from counsel.