Rost v. State, 20511
| Decision Date | 26 April 1996 |
| Docket Number | No. 20511,20511 |
| Citation | 921 S.W.2d 629 |
| Parties | Herchel D. ROST, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Rosalynn Koch, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General and Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
This is an appeal from the denial of post-conviction relief without an evidentiary hearing in a proceeding under Rule 24.035. 1 Appellant's sole point relied on avers the motion court clearly erred in denying relief in that:
"... Appellant was subjected to multiple punishment for the same offense in violation of his right to be free from double jeopardy as established by the Fifth and Fourteenth Amendments to the United States Constitution in that he was convicted of assault in the second degree and the lesser included offense of driving while intoxicated."
While that appears to be a simple issue, adjudicating this appeal became a vexing task because of the procedural nuances and case law intricacies discussed infra.
Appellant was charged with three crimes. Each charge was filed as a separately-numbered case.
Case number CR493-732FX. Driving while intoxicated, § 577.010, RSMo 1986, and § 577.023, RSMo Cum.Supp.1993. Class D felony.
Case number CR493-733FX. Leaving the scene of a motor vehicle accident that resulted in physical injury to another party, § 577.060, RSMo Cum.Supp.1989. Class D felony.
Case number CR493-734FX. Assault in the second degree, § 565.060.1(4), RSMo Cum.Supp.1993. Class C felony.
For convenience, when we refer to a particular case we shall identify it by the last three digits of its case number, viz: "732," "733," or "734," respectively.
Appellant appeared in the plea court with retained counsel, who announced that the prosecutor had made a "plea offer" whereby the prosecutor would recommend a four-year sentence in each case if Appellant pled guilty in each. The sentences would run consecutively.
Appellant's lawyer ("defense counsel") informed the plea court that Appellant "has signed the plea agreement." Defense counsel asked the plea court whether he (counsel) could "make a record" as to Appellant's understanding. The plea court granted the request.
Under questioning by defense counsel, Appellant confirmed under oath that he understood the range of punishment in all three cases and wanted to plead guilty in all three pursuant to the plea agreement. Then, this:
"Q. And I discussed with you in great detail, since the initiation of this case, that it is my belief the State cannot prosecute you for both the felony DWI and the assault second. Do you understand that?
A. Yes, I do.
Q. And I've told you that it is my opinion and belief that the double jeopardy clause of the United States Constitution and the Missouri Constitution would bar the prosecution and sentencing for both DWI and the assault second?
A. Yes, sir.
Q. That you could be prosecuted for one or the other, but not both?
A. Yes, sir.
Q. And I've also recommended to you specifically not to enter into this plea agreement as it relates to either the DWI or the assault second. Is that your understanding?
A. Yes.
Q. But even though I told you this, it is still your desire to enter such a plea?
A. Yes.
Q. You understand that by entering your plea of guilty to the assault second and also the DWI, that you waive your right to assert the double jeopardy argument?
A. Yes, I do.
Q. And you're willing to waive that right and disregard the advice of counsel?
A. Yes."
The basis of defense counsel's advice to Appellant about double jeopardy is found in § 565.060.1, which reads:
"A person commits the crime of assault in the second degree if he:
....
(4) While in an intoxicated condition ... operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause physical injury to any other person than himself...."
The information in case 734 alleged, inter alia, that Appellant:
"... while under the influence of alcohol, caused physical injury to R.L.B. ... by striking him with a motor vehicle while in an intoxicated condition, when operating a motor vehicle with criminal negligence...."
The information pled the above crime was committed September 4, 1993, in Howell County.
The information in case 732 alleged, inter alia, that Appellant, on September 4, 1993, operated a motor vehicle "on or near Rt. VV Brandsville" in Howell County while under the influence of alcohol.
Asked by the plea court what the State's proof would be, the prosecutor replied, insofar as pertinent to this appeal: on September 4, 1993, Appellant was operating a motor vehicle in a criminally negligent manner while under the influence of alcohol near Brandsville; a bicyclist saw Appellant's vehicle strike the victim (a minor), causing physical injury; Appellant stopped his vehicle, got out, approached the victim, then left the scene without advising anyone of his identity; a deputy sheriff responded to a call about the incident and found Appellant "behind the wheel of his vehicle"; Appellant failed some "sobriety tests" and admitted consuming "approximately ten beers."
The plea court addressed Appellant as required by Rule 24.02 and determined Appellant understood the plea agreement and was pleading guilty voluntarily. The plea court found there was a factual basis for each plea of guilty, accepted each plea, and imposed the agreed sentence in each case, ordering the three sentences to run consecutively.
After delivery to the Department of Corrections, Appellant commenced the instant proceeding by filing a pro se motion within the time required by Rule 24.035(b). The motion attacked only the conviction and sentence in case 732, 2 and pled only one ground for relief. That ground is unrelated to the double jeopardy claim articulated in Appellant's point relied on in this appeal. 3
The lawyer appointed to represent Appellant in the motion court filed a timely amended motion averring, inter alia, that the conviction and sentence in case 732 violated Appellant's constitutional right "to be free from double jeopardy." Specifically, maintained the amended motion, the conviction and sentence in case 732 denied Appellant his constitutional protection against multiple punishments for the same offense. The amended motion hypothesized that the General Assembly did not intend that an accused be punished separately for the crimes in cases 732 and 734. The amended motion prayed the motion court to vacate the conviction and sentence in case 732. The amended motion, like the pro se motion, sought no relief in cases 733 and 734. 4
The motion court found Appellant "knowingly waived any constitutional immunity from double jeopardy by entering pleas of guilty to the crimes of assault in 2nd degree & DWI." Accordingly, as reported in the first sentence of this opinion, the motion court denied relief without an evidentiary hearing.
Appellant begins his argument by citing Hagan v. State, 836 S.W.2d 459 (Mo. banc 1992). There, as here, the accused pled guilty to three crimes. Id. at 460. One was second degree robbery by forcibly stealing the keys to a motor vehicle from the owner. Id. Another was stealing the motor vehicle itself. Id. Both of those crimes were allegedly committed at the same hour, on the same date, at the same location, and against the same victim. Id. at 461. The accused sought post-conviction relief, asserting the conviction for second degree robbery and the conviction for stealing violated the double jeopardy clause of the Fifth Amendment to the Constitution of the United States. Id.
The Supreme Court of Missouri said:
Hagan, 836 S.W.2d at 461 (emphasis in original).
In the instant case, Appellant insists that the crime in case 734 (assault in the second degree) "incorporates the crime of driving while intoxicated by its terms" (the crime in case 732). In support of that premise, Appellant cites State v. Bally, 869 S.W.2d 777, 778 n. 2 (Mo.App.W.D.1994), where the State did not contest the accused's contention that driving while intoxicated is a lesser included offense in vehicular manslaughter.
Respondent's brief says:
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