State v. Coor, 14888
| Citation | 740 S.W.2d 350 |
| Decision Date | 26 October 1987 |
| Docket Number | No. 14888,14888 |
| Parties | STATE of Missouri, Plaintiff-Appellant, v. Michael J. COOR, Defendant-Respondent. |
| Court | Court of Appeal of Missouri (US) |
William L. Webster, Atty. Gen., Byrona J. Kincanon, Asst. Atty. Gen., Jefferson City, for plaintiff-appellant.
Robert P. Warden, Joplin, for defendant-respondent.
Defendant Michael J. Coor was charged with twenty-three (23) counts of failure to pay sales tax in violation of § 144.480, RSMo 1986. 1 Upon defendant's motion, the trial court dismissed Counts One (I) through Twenty (XX) on the ground that § 144.510 denounces violations of §§ 144.010 through 144.510 as misdemeanors and prosecution of the offenses charged in Counts One (I) through Twenty (XX) was barred by the 1-year statute of limitation imposed by § 556.036.2(2). The trial court severed Counts Twenty-one (XXI), Twenty-two (XXII) and Twenty-three (XXIII) pursuant to Rule 24.07. The State has appealed.
Although neither party to the action has questioned the jurisdiction of this court, we are nevertheless bound to determine sua sponte that appellate jurisdiction exists before we consider the appeal on its merits. State v. Garrett, 642 S.W.2d 378 (Mo.App.1982); State v. Fender, 600 S.W.2d 683, 685 (Mo.App.1980); State v. Barton, 567 S.W.2d 460 (Mo.App.1978). In this case, the question of appellate jurisdiction is almost as complicated as the sole issue tendered on the merits.
Does the appeal require "construction" of a "revenue law"
within the intent of Mo. Const. Art. V, § 3?
Mo. Const. Art. V, § 3 (as amended 1982) provides in terms that our Supreme Court has "exclusive appellate jurisdiction in all cases involving ... the construction of the revenue laws of this state." To adjudicate this appeal on its merits we are obliged to construe § 144.480. In one sense, § 144.480 is a "revenue law" because it is part of the Sales Tax Law, which has existed as a coherent body of statutes since 1933. Laws of Mo. 1933-34, Ex.Sess. p. 155. Nevertheless § 144.480 neither purports to impose a tax nor to prescribe a method of computing or collecting a tax. Section 144.480 is a criminal statute, and this court is only required to determine whether violation of § 144.480 is a felony or a misdemeanor. The defendant's duty to pay sales tax is not in issue.
State v. Lauridsen, 312 S.W.2d 140 (Mo.1958), is instructive. In that case, the defendants were charged with failure to procure a license required by a revenue statute. On appeal, the defendants maintained the Supreme Court had jurisdiction because a construction of the revenue laws was required and because a construction of the Constitution of the United States and of this State was involved. The court pointed out that the real question presented was whether the defendants had violated the law and continued:
(Emphasis added.)
State v. Lauridsen, 312 S.W.2d at 142. So, although it is necessary on this appeal to determine the meaning of § 144.480, the result will not directly affect the right of the state to collect revenue, prohibit it from collecting any revenue, or to do any act or enforce any obligation in connection therewith, or to directly adjudge or enforce the payment of any revenue. To reiterate, the sole issue is whether a criminal defendant's violation of § 144.480 is a felony or a misdemeanor. We conclude that no construction of the revenue laws, in the appellate jurisdictional sense, is directly involved and this court has jurisdiction if the State has a right of appeal.
Does the State have a right of appeal?
The State cavalierly assures us of its right to appeal by citing § 547.200.2. No precedent is cited. The subsection of § 547.200 upon which the State relies reads as follows:
The basic rule is that the State cannot appeal a judgment for the accused, whether it is upon a verdict of acquittal or upon the determination of a question of law, unless a right of appeal is unequivocally conferred by statute. State v. Craig, 223 Mo. 201, 122 S.W. 1006 (1909); State v. Evans, 679 S.W.2d 434, 435 (Mo.App.1984); State v. Little River Drainage District, 490 S.W.2d 675, 676 (Mo.App.1973).
Section 547.210, which has been on the books for many years, permits an appeal by the State when any indictment or information is adjudged insufficient upon demurrer or exception, or when the judgment is arrested or set aside. Our courts have held, nevertheless, that § 547.210 does not permit an appeal by the State from the dismissal of an indictment or information based on matters dehors the record. State v. Brooks, 372 S.W.2d 83, 85 (Mo.1963); State ex rel. Martin v. Berrey, 560 S.W.2d 54, 59 (Mo.App.1977).
The rationale of the decisions so holding appears to be that pretrial dismissal of an indictment or information upon consideration of evidence outside the record is the functional equivalent of an acquittal. In State v. Perou, 428 S.W.2d 561 (Mo.1968), the defendant moved to dismiss the indictment on the ground that the prosecutions were barred by limitation. The trial court agreed and sustained the motion to dismiss. The State appealed and our Supreme Court dismissed the appeal, holding that the effect of the court's dismissal upon the ground that the prosecution was barred by limitation was a discharge on the merits and a bar to further prosecution on an unappealable ground. State v. Perou, 428 S.W.2d at 562-563.
The Berrey case dealt with a plea of former jeopardy, which, as our colleagues at Kansas City recognized, relates to matters beyond the record, so a dismissal on that ground could not be appealed by the State.
In State v. Jewell, 628 S.W.2d 946 (Mo.App.1982), the trial court dismissed an information on the ground that the prosecution was barred by limitation after hearing evidence which, the State argued, tolled the statute of limitation. The Western District dismissed the State's appeal, holding that a dismissal for insufficiency of the information within the intent of § 547.210 is a dismissal for failure to state an offense and is determined from a reading of the charge itself. The court also held that because the dismissal was based on consideration of evidence outside the record, the Perou case required dismissal of the appeal. The Jewell decision is factually similar to the case at hand, for in this case the State pled fraud as an element of the offense charged in each count, and fraud in the commission of an offense may extend the period of limitation under the present statute. Section 556.036.3(1).
Despite these and other similar decisions, it was recognized before the enactment of present § 547.200 that the State's right of appeal was inadequate. In State ex rel. McNary v. Stussie, 518 S.W.2d 630 (Mo.banc 1974), the State was without an appropriate remedy to determine the validity of a statute reducing the minimum age for jurors to 18. Our Supreme Court recognized that the State had no vehicle by means of an appeal to test the constitutionality of the act and resolved the legal issue tendered by entertaining an action in mandamus. Of course, in State ex rel. Hannah v. Seier, 654 S.W.2d 894 (Mo.banc 1983), the supreme court refused to expand the State's right of appeal by utilizing prohibition to review a dismissal of several counts of an information upon the ground that the prosecutions were barred by limitation. The trial court had heard evidence dehors the record. The court speculated that Laws of Mo. 1983, H.B. 279, part of which became § 547.200, might afford the State a right of appeal in such a case.
In State ex rel. Martin v. Berrey, 560 S.W.2d 54, our colleagues at Kansas City resorted to the writ of prohibition to supplement the State's right of appeal in a case which had been dismissed because of former jeopardy. The court perceptively observed that appeals by the State in criminal cases are made exceptional because they tend to threaten the policy which sustains the double jeopardy principle. State ex rel. Martin v. Berrey, 560 S.W.2d at 59. Another case in which the inadequacy of the State's right of appeal was recognized is State ex rel. Corcoran v. Buder, 428 S.W.2d 935 (Mo.App.1968). In that case an information had been dismissed on the due process ground that the defendant had not been afforded a speedy trial. Our colleagues at St. Louis concluded the State's right of appeal was inadequate and supplemented that right by utilizing the writ of mandamus.
The General Assembly is presumed to be aware of existing declarations of law and the construction of existing statutes when it enacts a law on the same subject. Howlett v. Social Security Commission, 347 Mo. 784, 792, 149 S.W.2d 806, 811-812 (banc 1941); State ex rel. Missey v. City of Cabool, 441 S.W.2d 35, 41 (Mo.1969); Bushell v. Schepp, 613 S.W.2d 689, 691-692 (Mo.App.1...
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