MOTION TO WITHDRAW GUILTY PLEA AND DISMISS
COMES NOW defense moving this Honorable Court to withdraw Ms.
B’s guilty plea and to dismiss the cause, and represents as follows:
Background
1) Ms. B was charged with violation of section 570.030 in a complaint
filed on 2/4/13.
2) Said complaint alleged said violation occurred on or about 8/1/11.
3) Ms. B pled guilty on 6/27/13 and was sentenced to 7 years in the
Missouri department of corrections. The Court suspended the execution of said
sentence and placed Ms. B on 5 years of supervised probation with special
conditions.
4) The state filed a motion to revoke probation at issue here on 8/26/15.
Argument
The plain language of section 570.030.1, RSMo, states that a person commits
the crime of stealing if he or she appropriates property or services of another with the
purpose to deprive him or her thereof, either without his or her consent or by means of
deceit or coercion. Our state supreme court recently analyzed section 570.030 in State
v. Bazell, No. SC95318 (Mo. 2016) (Opinion issued August 23, 2016) stating:
“(w)e cannot know why the legislature, in 2002, decided to amend section 570.030.3 to add the requirement that only offenses for which ‘the value of property or services is an element’ may be enhanced to a felony, but this is what the legislature clearly and unambiguously did. As a result, section 570.030.3 does not apply here. Defendant’s offenses must be classified as misdemeanors because they cannot be enhanced to felonies by the terms of section 570.030.3.”
Recently our western district clarified the Bazell decision in State v. McMillian,
WD79440 (Opinion issued October 18, 2016). There, the state argued that Bazell only
applies to felony enhancement for stealing a firearm, motor vehicle, or other item, and
not when the enhancement is based on a value over five hundred dollars. The
McMillian court stated:
“We see no support in Bazell for the interpretation advocated by the State. Bazell made no distinction between the various ways the enhancement provision could be triggered. Bazell found that the statute under which McMillian is charged, section 570.030.1, does not contain as an element ‘the value of property or services’. Id. Therefore, section 570.030.3, which only applies where ‘the value of property or services’ is an element of the offense, is inapplicable. The specific character of the enhancement sought under section 570.030.3 is irrelevant because the enhancement simply does not apply to section 570.030.1.”
The McMillian court affirmed a dismissal on statute of limitations grounds
stating:
“McMillian was charged under Section 570.030 with stealing, by deceit, property valued at over $500. Pursuant to Bazell, the charge against McMillian may not be enhanced to a felony but, as a matter of law, can only be a class A misdemeanor. See Section 570.030.10. Accordingly, under section 556.036.2, the statute of limitations for a misdemeanor is one
year.”
Ms. B is accused of stealing occurring on or about August 1, 2011.
Absent tolling of the statute of limitations, the state must have charged Ms. B by
August 1, 2012. Ms. B was not charged until February 4, 2013, and as such, the
state initiated the charge outside the one year statute of limitations.
To correct manifest injustice, Supreme Court Rule 29.07(d) authorizes this
Court to set aside this judgment and to permit Ms. B to withdraw her guilty plea.
And if granted, the state should not be allowed to move forward on a case untimely
filed, and as such, this matter should be dismissed.
Conclusion
The Bazell Court declared violations of 570.030 under the amended 2002
statute are misdemeanors. The McMillian Court followed up stating that as a matter
of law violations of 570.030 are class A misdemeanors subject to the the one year
statute of limitations. Ms B’s violation of 570.030 is a misdemeanor filed
beyond the one year statute of limitations. To correct this manifest injustice, Ms.
B should be allowed to withdraw her guilty plea and the state’s case dismissed.
Respectfully submitted,
/s/ Michael Hustead