State v. Casaretto, No. 59523

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGARY M. GAERTNER; REINHARD, P.J., and CRANE
Citation818 S.W.2d 313
PartiesSTATE of Missouri, Appellant, v. Troy CASARETTO, Respondent.
Decision Date05 November 1991
Docket NumberNo. 59523

Page 313

818 S.W.2d 313
STATE of Missouri, Appellant,
v.
Troy CASARETTO, Respondent.
No. 59523.
Missouri Court of Appeals,
Eastern District,
Division One.
Nov. 5, 1991.

Page 314

William L. Webster, Atty. Gen., Joseph P. Murray, Asst. Atty. Gen., Jefferson City, for appellant.

Allen I. Harris, St. Louis, for respondent.

GARY M. GAERTNER, Judge.

Appellant, the State of Missouri, appeals an order dismissing an indictment against respondent, Troy Casaretto, for one count of first-degree sexual assault, RSMo § 566.040 (1986), based on the statute of limitations. Respondent was originally charged by indictment with one count of first-degree sexual assault, and one count of incest, RSMo § 568.020 (1986). We reverse and remand for trial.

Respondent, Troy Casaretto, was charged by indictment on July 9, 1990, with first degree sexual assault and incest. The indictment alleged, inter alia, that respondent had sexual relations with his niece from January 1, 1988, to May 6, 1990, and that respondent had sexual relations with a fourteen or fifteen year old woman who was not his wife, between August 1, 1985, and December 31, 1985.

On August 21, 1990, respondent filed a motion to dismiss the sexual assault charge on the grounds that Missouri's three-year statute of limitations, RSMo § 556.036.2(1) (1986), had run, leaving the court with no jurisdiction to try the case. The State claimed, however, that Missouri's new ten-year statute of limitations for sex offenses, RSMo § 556.037 (Supp.1989) (enacted 1987), allowed the prosecution. In response to this claim, respondent argued that application of the 1987 statute of limitations provision violated the prohibition against ex post facto laws. On November 26, 1990, the trial court sustained respondent's motion, dismissing the case based on the statute of limitations set forth in RSMo § 556.036.2(1). This appeal by the State followed.

Page 315

In his brief, respondent alleges this court lacks jurisdiction for several reasons. First, he argues, the State filed its appeal out of time without first receiving leave of court. The record shows this assertion to be incorrect. The indictment against respondent was dismissed by the trial court on November 26, 1990. Since no post-trial motions were filed, the judgment became final for purposes of appeal no earlier than December 26, 1990. Rule 29.13. From that date, appellant has ten days to file notice of appeal. Rule 30.01(d). The record shows notice was filed on January 3, 1991, well before the January 5, 1991, deadline. Respondent's assertion is groundless. Point denied.

Respondent also asserts that the State has no right of appeal in the instant case. Citing this court to State v. Perou, 428 S.W.2d 561 (Mo.1968) and State v. Jewell, 628 S.W.2d 946 (Mo.App., W.D.1982), respondent claims that, since the trial court considered matters "dehors the record" when considering the motion to dismiss, the dismissal of the indictment is the equivalent of an acquittal and, therefore, the State cannot appeal. We disagree with respondent's reasoning and agree with appellant.

RSMo § 547.200.2 (1986), provides, in part:

The State, in any criminal prosecution, shall be allowed an appeal in the cases and under the circumstances mentioned in section 547.210 and in all other criminal cases except in those cases where the possible outcome of such an appeal would result in double jeopardy for the defendant. (emphasis by the court).

In State v. Coor, 740 S.W.2d 350 (Mo.App., S.D.1987), the respondent was charged with 23 counts of failing to pay sales tax, twenty of which were dismissed on statute of limitations grounds. Considering the question of jurisdiction sua sponte, the court reasoned that the legislature, having recognized the inadequacy of the State's right of appeal, 1 passed § 547.200.2 with the intent to remedy those inadequacies. Coor, 740 S.W.2d at 354. A new statute must be construed in light of the defect it sought to remedy and the usages, circumstances and conditions existing at the time the change was made. Id.

We agree with our Southern District colleagues and hold that the language "in all other criminal cases" of RSMo § 547.200.2 is broad enough to include cases where an indictment or information is dismissed on grounds "dehors the record." Id. Thus, the State has a...

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20 practice notes
  • State v. Hirsch, No. S-92-611
    • United States
    • Supreme Court of Nebraska
    • January 28, 1994
    ...1157 (1993), review denied 317 Or. 584, 859 P.2d 541 (1993); State v. Dufort, 111 Or.App. 515, 827 P.2d 192 (1992); State v. Casaretto, 818 S.W.2d 313 (Mo.App.1991); People v. Russo, 185 Mich.App. 422, 463 N.W.2d 138 (1990), aff'd in part, rev'd in part 439 Mich. 584, 487 N.W.2d 698 (1992);......
  • State v. Smith, No. WD
    • United States
    • Missouri Court of Appeals
    • March 2, 1999
    ...of double jeopardy is always inherent in the State's appeal of criminal matters. White, 860 S.W.2d at 806 (quoting State v. Casaretto, 818 S.W.2d 313, 315 (Mo.App.1991)). Our review therefore, not only encompasses the issue of whether the trial court erred by dismissing the case against Smi......
  • Nesbitt v. Hopkins, No. 4:CV91-3364.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • March 1, 1995
    ...petitioner's factual guilt or conduct, and thus did not bar petitioner's subsequent conviction for murder. See, e.g., State v. Casaretto, 818 S.W.2d 313, 315-16 (Mo.App. 1991); Cox v. State, 585 So.2d 182, 189-192 (Ala.Cr.App.1991), cert. denied, 503 U.S. 987, 112 S.Ct. 1676, 118 L.Ed.2d 39......
  • State v. Kelley, Nos. 19988
    • United States
    • Court of Appeal of Missouri (US)
    • July 17, 1997
    ...State v. Hillis, 748 S.W.2d 694, 697 (Mo.App.1988). "A procedural law is the 'machinery' for carrying on the suit." State v. Casaretto, 818 S.W.2d 313, 316 In State v. Baker, 524 S.W.2d 122 (Mo.banc 1975), the Missouri Supreme Court held that the rule of criminal procedure on joinder, then ......
  • Request a trial to view additional results
20 cases
  • State v. Hirsch, No. S-92-611
    • United States
    • Supreme Court of Nebraska
    • January 28, 1994
    ...1157 (1993), review denied 317 Or. 584, 859 P.2d 541 (1993); State v. Dufort, 111 Or.App. 515, 827 P.2d 192 (1992); State v. Casaretto, 818 S.W.2d 313 (Mo.App.1991); People v. Russo, 185 Mich.App. 422, 463 N.W.2d 138 (1990), aff'd in part, rev'd in part 439 Mich. 584, 487 N.W.2d 698 (1992);......
  • State v. Smith, No. WD
    • United States
    • Missouri Court of Appeals
    • March 2, 1999
    ...of double jeopardy is always inherent in the State's appeal of criminal matters. White, 860 S.W.2d at 806 (quoting State v. Casaretto, 818 S.W.2d 313, 315 (Mo.App.1991)). Our review therefore, not only encompasses the issue of whether the trial court erred by dismissing the case against Smi......
  • Nesbitt v. Hopkins, No. 4:CV91-3364.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • March 1, 1995
    ...petitioner's factual guilt or conduct, and thus did not bar petitioner's subsequent conviction for murder. See, e.g., State v. Casaretto, 818 S.W.2d 313, 315-16 (Mo.App. 1991); Cox v. State, 585 So.2d 182, 189-192 (Ala.Cr.App.1991), cert. denied, 503 U.S. 987, 112 S.Ct. 1676, 118 L.Ed.2d 39......
  • State v. Kelley, Nos. 19988
    • United States
    • Court of Appeal of Missouri (US)
    • July 17, 1997
    ...State v. Hillis, 748 S.W.2d 694, 697 (Mo.App.1988). "A procedural law is the 'machinery' for carrying on the suit." State v. Casaretto, 818 S.W.2d 313, 316 In State v. Baker, 524 S.W.2d 122 (Mo.banc 1975), the Missouri Supreme Court held that the rule of criminal procedure on joinder, then ......
  • Request a trial to view additional results

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