State v. Corley

• Decision Date: 07 May 2008
• Docket Number: No. 28249.,28249.
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Calvin CORLEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

251 S.W.3d 416

STATE of Missouri, Plaintiff-Respondent, v. Calvin CORLEY, Defendant-Appellant.

No. 28249.

Missouri Court of Appeals, Southern District, Division II.

May 7, 2008.

Matthew Ward, Columbia MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Robert J. (JEFF) Bartholomew, Jefferson City MO, for respondent.

DON E. BURRELL, Judge.

Calvin Corley ("Defendant") appeals his conviction for assault in the second degree, a violation of section 565.060.¹

On February 20, 1998, Defendant drank some beer at a party. Defendant left the party with Rebecca Kirn² ("Kirn"), his girlfriend at the time, and was driving her car. At some point, Defendant passed another vehicle at a high rate of speed. Shortly thereafter, Defendant approached a curve too fast and lost control of the car. The vehicle left the roadway and hit a tree. Kirn suffered various injuries to her legs and a four inch cut on her head. As a result of the injuries she suffered in the car crash, Kirn underwent surgery in which a metal rod was placed in her right leg and pins were placed in her left ankle.

On July 17, 1998, Defendant was charged with one count of second degree felony assault. The information charged that Defendant

in violation of Section 565.060 ... committed the class C felony of assault in the second degree ... in that on or about February 20, 1998 ... the defendant, while in an intoxicated condition or under the influence of controlled substances or drugs, operated a motor vehicle and acted with criminal negligence to cause physical injury to [Kirn].

This charge against Defendant was dismissed without prejudice on March 31, 2003. On April 29, 2004, the State filed a new information ("second information") that included as Count I the same second degree assault charge that had been previously dismissed, but also added a second, alternative count of second degree felony assault as Count II. Count II charged that Defendant

in violation of Section 565.060 ... committed the class C felony of assault in the second degree ... in that on or about February 20, 1998 ... the defendant recklessly caused serious physical injury to [Kirn] by operating a motor vehicle at an excessive rate of speed, crossing the center line failing to negotiate at [sic] curve, losing control of the motor vehicle; leaving the traveled portion of the highway and striking a tree with the motor vehicle in which [Kirn] was a passenger.

Prior to trial, Defendant had filed a motion to dismiss the information based on an allegation that the "case" was barred by section 556.036 (the applicable three year statute of limitation). The trial court denied the motion. At trial — after opening statements and during the testimony of the State's first witness — Defendant once again asked the court to reconsider its earlier ruling and dismiss "the case" because the statute of limitation had run. The court stood on its earlier ruling and denied Defendant's renewed request that "the case" be dismissed.

After a bench trial, the trial court announced that it found Defendant not guilty as to Count I but guilty as to Count II.

Defendant now appeals, alleging that the trial court erred by entering sentence and judgment against him on a count that was time-barred by section 556.036.

Standard of Review

Whether or not a statute of limitation applies is a question of law and, therefore, our review of the trial court's decision is de novo. State v. Rains, 49 S.W.3d 828, 831 (Mo.App. E.D.2001).

Analysis

A clerical error in the judgment requires us to remand the case with a direction that the trial court enter an amended judgment consistent with its announced verdict. The existing Sentence and Judgment enters a judgment and sentence as to Count I and makes no reference at all to Count II. "The failure to memorialize accurately the decision of the trial court as it was announced in open court [is] clearly a clerical error. `Rule 29.12 permits a trial court to correct such clerical errors in the judgment that obviously are a result of oversight or omission.'" State v. Taylor, 123 S.W.3d 924, 931 (Mo.App. S.D.2004) (quoting State v. Booyer, 87 S.W.3d 926, 931 (Mo.App. S.D. 2002)).

Section 556.036 creates a three year statute of limitation for the felony at issue. The limitation period does not run during any time period in which a prosecution against the accused for an offense is pending in the state. Section 556.036. A prosecution for an offense is pending once an information is filed. Id. However, the period will not be tolled for a "different offense" than the one stated in the original information. State v. Rotter, 958 S.W.2d 59, 63 (Mo.App. W.D.1997). Instead, the new information or indictment "must charge the same defendant and substantially the same offense" in order for the period of limitation to have been tolled during the time a prosecution was pending on the original information or indictment. Reeves v. State, 726 S.W.2d 366, 369 (Mo. App. W.D.1987).

Defendant admits that the limitation period for the Count I charge that was previously brought in the original information was tolled so that it did not expire. However, he alleges that the Count II charge (the alternative count added in the second information) charged a "different offense" and, therefore, its limitation period could not have been tolled by the filing of the original information.³ Defendant argues — without citation to any authority — that although both counts in the information charged the class C felony of assault in the second degree under section 565.060, they were "two different crimes." Defendant urges us to apply a double jeopardy analysis in order to determine whether counts I and II should be considered "different offenses" for purposes of determining whether the Count II charge is time-barred by section 556.036. Defendant has cited us to no Missouri cases (and we can find none) that have applied a double jeopardy analysis to a statute of limitation question, and for good reason.

"Double jeopardy protection arises from article I, section 19 of the Missouri Constitution and from the Fifth Amendment of the United States Constitution." State v. Hicks, 221 S.W.3d 497, 505 (Mo. App. W.D.2007). The prohibition against double jeopardy serves to protect against three abuses: 1) being tried again for the same offense after being acquitted the first time; 2) being tried for the same offense after being previously convicted of that offense; and 3) multiple punishments for the same offense. Id.

Statutes of limitation, on the other hand, are legislative creations that "represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice; they `are made for the repose of society and the protection of those who may (during the limitation) ... have lost their means of defence'." U.S. v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (quoting St. Louis Public Schools v. Walker, 9 Wall. 282, 76 U.S. 282, 288, 19 L.Ed. 576 (1869)). Statutes of limitation act as "the primary guarantee against bringing overly stale criminal charges." Id. As statutes of limitation have a different origin and purpose than the constitutional protection against double jeopardy, it is appropriate to apply a different analysis.

In State v. Lamar, 213 Mo.App. 306, 249 S.W. 654 (1923), the defendant was initially charged — via indictment — with bribery.⁴ The indictment was later quashed and an information was filed which charged the defendant with compounding a misdemeanor. Id. The information stated that the defendant had knowledge of the commission of a larceny by another person and did "unlawfuly [sic] exact, take, receive, and have ... a certain valuable thing, to wit, a check for the sum of $50 ... he, [the defendant] then and there receiving said check under and upon the agreement and understanding ... that [defendant] would compound and conceal the said misdemeanor and abstain from any prosecution therefore and withhold the evidence thereof[.]" Id. at 654-55. The defendant argued that the original bribery charge contained in the indictment did not serve to toll the statute of limitation for the compounding a misdemeanor charge contained in the later filed information. Id. at 655. The Lamar court determined that the statute of limitation for the compounding a misdemeanor charge had been tolled by the bribery charge contained in the indictment. Id. at 656. In so holding, the court noted that the act constituting the offense was the same in both the indictment and information and that both charges were based on the identical alleged unlawful act of the defendant. Id. at 655-56. Additionally, the court stated that the information set out essentially the same facts as those charged in the indictment. Id. at 656.

In 1933, our court was again faced with this issue when a defendant claimed that an information originally charging him with making a false affidavit about the age of a child failed to toll the statute of limitation for an amended information which later revised the charge to that of making a false affidavit for the purpose of securing a marriage license. Neither information referred to a specific statute number and there was a disagreement between counsel as to what statute or statutes was or were at issue. State v. Little, 60 S.W.2d 83, 84 (Spr.Ct.App.1933). The original information charged that the defendant "did wilfully, [sic] unlawfully, and maliciously make a false affidavit ... as to the age of one May Lane, by alleging that the said May Lane was of the age of twenty-two years when in truth and in fact she was of the age of fifteen years[.]" Id. The amended information stated that the defendant

did willfully, corruptly and falsely ... under oath voluntarily made a false affidavit, then and there knowing said affidavit to be false, for the purpose of securing a marriage license, as to the age of one May Lane by alleging in said affidavit that...