State v. Acevedo

• Decision Date: 18 April 2011
• Docket Number: SD 30434.,Nos. SD 30432,s. SD 30432
• Citation: 339 S.W.3d 612
• Parties: STATE of Missouri, Respondent,v.Daniel ACEVEDO, Appellant.
• Court: Missouri Court of Appeals

339 S.W.3d 612

STATE of Missouri, Respondent,

v.Daniel ACEVEDO, Appellant.

Nos. SD 30432

SD 30434.

Missouri Court of Appeals, Southern District, Division One.

April 18, 2011.

Craig A. Johnston, Columbia, for Appellant.Chris Koster, Atty. Gen. and Richard A. Starnes, Asst. Atty. Gen., Jefferson City, for Respondent.ROBERT S. BARNEY, Presiding Judge.

In these consolidated appeals Daniel Acevedo (“Appellant”) appeals his convictions by the trial court for two counts of the class D felony of driving with a revoked driver's license, violations of section 302.321.2.¹ Following a bench trial, Appellant was sentenced to concurrent terms of two years imprisonment for each count with the execution of those sentences suspended, and he was placed on five years probation on each count. At issue is whether Appellant had sufficient prior convictions for driving with a “revoked” driver's license, as that term is defined and set out in section 302.321, in order to have enhanced his offenses from class A misdemeanors to class D felonies. In his sole point relied on, Appellant maintains the trial court erred in convicting him of the crimes charged because the State introduced only evidence to prove he committed class A misdemeanors in both cases such that the State failed to prove under section 302.321.2 that he “had at least three prior [driving while revoked ] convictions to enhance his offenses to class D felonies....” (Emphasis added.) Thus, he asserts he was sentenced in excess of the maximum sentence authorized by law.

The record reveals Appellant was charged by amended information in two separate cases with class D felonies for driving while license was revoked, contrary to section 302.321, on October 14, 2008, and November 24, 2008. ² Section 302.321 provides in pertinent part:

1. A person commits the crime of driving while revoked if such person operates a motor vehicle on a highway when such person's license or driving privilege has been canceled, suspended, or revoked under the laws of this state or any other state and acts with criminal negligence with respect to knowledge of the fact that such person's driving privilege has been canceled, suspended, or revoked.

2. Any person convicted of driving while revoked is guilty of a class A misdemeanor. Any person with no prior alcohol-related enforcement contacts as defined in section 302.525, convicted a fourth or subsequent time of driving while revoked or a county or municipal ordinance of driving while suspended or revoked where the defendant was represented by or waived the right to an attorney in writing, and where the prior three driving-while-revoked offenses occurred within ten years of the date of occurrence of the present offense ... is guilty of a class D felony .... Driving while revoked is a class D felony on the second or subsequent conviction pursuant to section 577.010 ..., or a fourth or subsequent conviction for any other offense.

(Emphasis added.) The charging documents in both cases set forth what the State maintained were four prior driving while revoked convictions which the State alleged enhanced Appellant's charged crimes from class A misdemeanors to class D felonies.

At trial, the parties also stipulated that the only issue was the sufficiency of the prior convictions which were to be used to enhance Appellant's crimes. The State then introduced exhibits into evidence to prove Appellant's prior convictions for “driving while revoked” per section 302.321. They were all received into evidence.

In part pertinent to our review, Exhibit # 3 reveals a judgment dated November 7, 2006, showing Appellant appeared with counsel in the Circuit Court of Lawrence County, Division II, and entered a plea of guilty to the amended charge of the class A misdemeanor of “driving while licensed suspended” on June 9, 2006, a violation of section 302.321.

Exhibit # 4 reveals a judgment entered by the Circuit Court of Lawrence County, Division II, dated January 26, 2004, wherein Appellant appeared in person, executed a written waiver of his right to counsel, and pled guilty to the class A misdemeanor of “DRIVING WHILE LICENSE REVOKED,” on December 25, 2003, a violation of section 302.321.

Exhibit # 5 reveals a docket entry judgment dated January 26, 2004, entered by the Circuit Court of Lawrence County, “Associate Division II,” wherein Appellant pled guilty to an “Information” charging him with violation on January 25, 2003, of section 303.370, RSMo 2000, being a class B misdemeanor of “DRIVING WHILE LICENSE SUSPENDED” “after his ... operator's license was suspended for financial responsibility....” ³ Additionally, Exhibit # 5 also reflected Appellant's written waiver of counsel form.

Lastly, Exhibit # 6 contains docket sheets; an “Information” filed on April 22, 2003, charging Appellant with violating section 303.370, RSMo 2000, by committing “the Class B misdemeanor of DRIVING WHILE LICENSE SUSPENDED” by operating a motor vehicle on April 11, 2003, “after his ... operator's license was suspended for financial responsibility ...;” and a judgment dated July 17, 2003, which set out that Appellant waived his right to an attorney by written waiver of counsel.⁴

Appellant moved for judgment of acquittal at the close of all the evidence broadly maintaining that “the State has failed to prove elements necessary to enhance the charge[s] in the present case[s] to ... class D felon[ies] of driving while revoked.” This motion was overruled by the trial court. At the conclusion of all the evidence the trial court found Appellant guilty of two class D felonies. The trial court then overruled Appellant's subsequent motion for a new trial which alleged the State failed to present sufficient evidence to enhance the crimes charged. Appellant was thereafter sentenced as previously set out. This appeal by Appellant followed.

In his sole point relied on, Appellant asserts the trial court erred in overruling his motion for judgment of acquittal at the close of the evidence “thereby finding him guilty of two class D felonies of driving while revoked ... under [section] 302.321, instead of class A misdemeanors, because this violated [section] 302.321 and Appellant's right to due process....” He specifically maintains that

because Appellant had no prior alcohol-related enforcement contacts, the State was required to prove under [section] 302.321.2 that Appellant had at least three prior [driving while revoked] convictions to enhance his offenses to class D felonies, yet three of the four certified convictions submitted at trial [were] for driving while suspended ... and not [driving while revoked], and thus Appellant was sentenced in excess of the maximum sentence authorized by law since the State failed to prove that Appellant had three prior [driving while revoked] convictions.

Appellant's argument appears to make a distinction between state law driving while revoked violations and county or municipal ordinance violations for driving while suspended or revoked. He argues that since the legislature used the words “driving while suspended or revoked” in connection with county or municipal ordinance violations as opposed to simply “driving while revoked” for state law violations, it was the legislature's intention that “the only [driving while suspended] convictions that can be used as enhancement offenses are for county or municipal ordinances violations.”

We note the State argues Appellant failed to properly preserve this issue such that plain error review is necessary because Appellant also maintained in his motion for judgment of acquittal at the close of evidence that the State had failed to prove Appellant knowingly and voluntarily waived his right to counsel when he pled guilty to prior driving while revoked offenses in three Lawrence County cases. While the State is technically correct, “ ‘[w]hether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.’ ” State v. Kimes, 234 S.W.3d 584, 590 (Mo.App.2007) (quoting Rule 30.20). “ ‘Rule 30.20 permits an appellate court to consider plain error sua sponte.’ ” Id. (quoting State v. Meanor, 863 S.W.2d 884, 891 (Mo. banc 1993)). “It is within the [appellate c]ourt's discretion to review an unpreserved point for plain error.” State v. Walker, 318 S.W.3d 789, 792 (Mo.App.2010). It has been held more than once that “ ‘[a] sentencing court exceeds its jurisdiction when it imposes a sentence in excess of the maximum allowed by law.’ ” Id. (quoting State v. Peeples, 288 S.W.3d 767, 776 (Mo.App.2009)).

“ ‘The standard of review in a court-tried case is the same as in a jury-tried case.’ ” State v. Craig, 287 S.W.3d 676, 681 (Mo. banc 2009) (quoting State v. McKinney, 253 S.W.3d 110, 113 (Mo.App.2008)). “ ‘In determining whether there is sufficient evidence to support the conviction, this [C]ourt accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the finding.’ ” Id. (quoting McKinney, 253 S.W.3d at 113). “ ‘We review the denial of a motion for a judgment of acquittal to determine whether the [S]tate adduced sufficient evidence to make a submissible case.’ ” State v. Sears, 298 S.W.3d 561, 563 (Mo.App.2009) (quoting State v. Barnes, 245 S.W.3d 885, 888–89 (Mo.App.2008)). “The function of the reviewing court is not to reweigh the evidence, but only to determine if the conviction is supported by sufficient evidence.” State v. McCleod, 186 S.W.3d 439, 443 (Mo.App.2006). We review questions of law de novo. Craig, 287 S.W.3d at 680.

In our review of Appellant's prior convictions as set out in Exhibits # 3, # 4, # 5, and # 6, only Exhibit # 4 expressly set out that it reflected a violation for driving with a revoked driver's license contrary to section 302.321. Each of the remaining convictions set out in the other exhibits arose from...