State v. Cotner, 022018 MOCAE, ED105180

Docket Nº:ED105180
Opinion Judge:Lisa P. Page, Presiding Judge
Party Name:STATE OF MISSOURI, Respondent, v. DAVID COTNER, Appellant.
Judge Panel:Roy L Richter, J, and Philip M Hess, J, concur
Case Date:February 20, 2018
Court:Court of Appeals of Missouri
 
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STATE OF MISSOURI, Respondent,

v.

DAVID COTNER, Appellant.

No. ED105180

Court of Appeals of Missouri, Eastern District, Second Division

February 20, 2018

Appeal from the Circuit Court of the City of St. Louis 1522-CR00072-01 Honorable Edward W. Sweeney

OPINION

Lisa P. Page, Presiding Judge

David Cotner ("Defendant") appeals the judgment on his convictions of felony stealing from a person and felony attempted stealing pursuant to Section 570.030 RSMo Cum. Supp. 2013.1

BACKGROUND

In 2015, Defendant was charged with first-degree robbery and armed criminal action for allegedly stealing from a Family Dollar store. Additionally, Defendant was charged with attempted stealing and attempted first-degree robbery for a subsequent incident at a Walgreens. Defendant waived his right to a jury trial, and agreed to trial by the court. He pleaded guilty to the charges of attempted stealing and attempted first-degree robbery, and proceeded to a bench trial on the charges of first-degree robbery and armed criminal action.

Following trial, the court entered judgment finding Defendant guilty of the lesser-included offense of stealing from a person on the first-degree robbery charge and found Defendant not guilty of armed criminal action. The court entered its judgment sentencing Defendant to five years for the stealing and attempted first-degree robbery convictions, and three years for attempted stealing. The present appeal followed.

DISCUSSION

Defendant presents two points on appeal; however, because our analysis is the same for both points, we address them together. Each of Defendant's points on appeal assert that the trial court erred entering judgment and sentence on his convictions for felony stealing and felony attempted stealing. Defendant claims he could only be convicted and sentenced to misdemeanor stealing and attempted stealing pursuant to Section 570.030. The State concedes error.

The Missouri Supreme Court has clearly stated the provisions of Section 570.030.3 cannot be used to enhance a defendant's offenses to felony stealing if the value of property or services is not an element of the crime. See State v...

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