State v. Becker

• Decision Date: 26 December 2000
• Citation: 34 S.W.3d 857
• Parties: (Mo.App. E.D. 2000) State of Missouri, Plaintiff/Respondent, v. Donald Becker, Defendant/Appellant. ED77441
• Court: Missouri Court of Appeals

34 S.W.3d 857 (Mo.App. E.D. 2000)

State of Missouri, Plaintiff/Respondent, v. Donald Becker, Defendant/Appellant.

ED77441

Missouri Court of Appeals Eastern District

12/26/2000

Appeal From: Circuit Court of the City of St. Louis, Hon. Joan M. Burger

Counsel for Appellant: Douglas R. Hoff

Counsel for Respondent: John Munson Morris, III and Stacy L. Anderson

Opinion Summary: Donald Becker appeals from a judgment entered after resentencing on the grounds that the trial court plainly erred in not changing his conviction for sodomy committed in 1991 in violation of a 1990statute to a conviction for child molestation under a statute that took effect January 1, 1995.

Division Five holds: Under Section 1.160, Becker was entitled to be sentenced for sodomy committed in 1991 within the lesser range of punishment applicable to child molestation under statutory changes effective in 1995 prior to his sentencing.However, he is not entitled to have the name of the offense changed from sodomy to child molestation.

Kathianne Knaup Crane, Presiding Judge

Defendant, Donald Becker, was indicted for sodomy in violation of Section 566.060 RSMo (Cum. Supp. 1990), for engaging in hand-to-genital contact with his eleven-year-old daughter in 1991.Before his trial, the legislature repealed this statute and enacted new statutes.Under the new statutes hand-to-genital contact was no longer included in the definition of sodomy, Section 566.062.1 RSMo (1994), but fell within child molestation, first degree.Section 566.067.1 RSMo (1994).Defendant was tried under the 1990statute and was found guilty.The trial court sentenced him to life imprisonment, the maximum sentence under the 1990statute.Section 566.060.2 RSMo (Cum. Supp. 1990).We affirmed the judgment, but subsequently recalled our mandate and ordered that defendant be resentenced to a term not to exceed seven years, the maximum sentence under the first-degree child molestation statute.Sections 558.011.1(3) RSMo (1994); 566.067.2 RSMo (1994).On appeal defendant argues that the trial court plainly erred in not amending his conviction to reflect the offense of child molestation instead of sodomy.We affirm.

Section 1.160 RSMo (1994) governs this situation.It provides:

No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except:

(1) That all such proceedings shall be conducted according to existing procedural laws; and

(2) That if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense prior to original sentencing, the penalty or punishment shall be assessed according to the amendatory law.

This statute"requires that a defendant be tried for the offense as...