State v. Dowdy
| Decision Date | 07 July 1989 |
| Docket Number | No. 15765,15765 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Danny O. DOWDY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Susan L. Hogan, Columbia, Gary V. Cover, Clinton, for defendant-appellant.
William L. Webster, Atty. Gen., Ronald L. Jurgeson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
A jury found defendant Danny Dowdy guilty of stealing, § 570.030, 1 and he was sentenced, as a persistent offender, § 558.016.3; § 558.016.6(3); § 557.036.4(1), to a term of ten years' imprisonment. Defendant appeals.
The information, as amended, charged the defendant with being a persistent offender. The two felonies on which the persistent offender allegation was based were as follows: "(1) On December 15, 1983, defendant was found guilty of the felony of stealing in the Circuit Court of Bates County, Missouri, and (2) on August 7, 1981, defendant plead guilty to the felony of stealing in the Circuit Court of Cole County, Missouri."
Defendant does not challenge the sufficiency of the evidence to support the conviction with respect to the instant offense. Defendant's appellate complaints concern the validity of the sentencing procedures and the sentence.
Section 570.040 reads:
Defendant asserts that the trial court erred in finding him to be a persistent offender and in removing the issue of punishment from the jury "in that the same two prior convictions were used to charge defendant with stealing, third offense, as were used to charge defendant as a persistent offender, and defendant was thus exposed to double enhancement of punishment." (Emphasis added.)
The basic question on this appeal is whether defendant's two prior stealing convictions which, by reason of § 570.040, make the instant offense a Class C felony may also be used, under § 558.016.3 to establish defendant's status as a "persistent offender." For the reasons which follow, this court answers the question in the negative.
The information charged that the defendant, on October 26, 1986, in Vernon County, appropriated "two Manhandler 'Lee' F60 X 14 tires and chrome (mag) wheels of a value of at least $150," owned by one Driskel, and did so with the statutory intent. In addition to its persistent offender allegations mentioned above, the information pleaded, again referring to the two previous stealing convictions, "that pursuant to [§ 570.040]," the instant offense was "a felony without regard to dollar value."
Immediately prior to the commencement of the trial, the state introduced evidence of the two prior stealing convictions. Although appellant has complained of the timeliness of the trial court's finding, the court did find that defendant had been convicted of the two prior stealing offenses and was a persistent offender.
Instruction 5, the state's verdict directing instruction, required the jury to find beyond a reasonable doubt, in essence, that on October 26, 1986, defendant "took" the property described in the information, that he did so without the consent of owner Driskel, and that he did so for the purpose of withholding it from the owner permanently. Instruction 5 did not require a finding with regard to the value of the property stolen, nor did it require the jury upon a finding of guilty, to assess and declare the punishment within the statutory range.
A "persistent offender" is one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times. § 558.016.3. The court shall find the defendant to be a persistent offender if, as applicable here, (1) the information pleads all essential facts warranting a finding that the defendant is a persistent offender; and (2) evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt that the defendant is a persistent offender; and (3) the court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a persistent offender. § 558.021.1. With an exception not applicable here, in a jury trial such facts shall be pleaded, established, and found prior to submission to the jury outside of their hearing. § 558.021.2.
A person commits the crime of stealing if he appropriates property or services of another with the purpose to deprive him thereof, either without his consent or by means of deceit or coercion. § 570.030.1. Section 570.030.3 provides that stealing is a Class C felony if the value of the property appropriated is $150 or more. That statute also lists other situations, none applicable here, in which stealing is a Class C felony. "[O]therwise, stealing is a Class A misdemeanor." § 570.030.3(3)(k).
The authorized term of imprisonment for a Class C felony is a term not to exceed seven years. § 558.011.1(3). For a Class A misdemeanor the authorized term of imprisonment is a term not to exceed one year. § 558.011.1(5). The authorized maximum term of imprisonment for a persistent offender for a Class C felony is 15 years. § 558.016.6(3).
Section 560.011 authorizes fines for a person who has been convicted of a Class C felony and they substantially exceed the fines authorized by § 560.016 for a person who has been convicted of a Class A misdemeanor.
With two exceptions § 557.036.2 requires the court to instruct the jury as to the range of punishment authorized by statute and, upon a finding of guilty, to assess and declare the punishment as a part of their verdict. The first exception involves a written request by the defendant that the court assess the punishment in case of a finding of guilt. The second exception applies when the state pleads and proves that the defendant is a prior offender, persistent offender, or dangerous offender, as defined in § 558.016.
The following facts are evident: The facts hypothesized in Instruction 5, on which the jury made its finding of guilt, would, in the absence of two prior stealing convictions and the implementation of § 570.040, amount only to a Class A misdemeanor; by reason of § 570.040, the two prior stealing convictions convert the facts hypothesized in Instruction 5 into a Class C felony; the term of imprisonment for a Class C felony may not exceed seven years; the trial court sentenced defendant to a term of 10 years; the 10-year sentence is proper only if the trial court, after invoking § 570.040 for the two stealing convictions, may invoke the same two stealing convictions to find defendant to be a persistent offender under § 558.016.3; since defendant made no written request that the court assess the punishment in case of a finding of guilt, if the state failed to prove that the defendant was a persistent offender, the court was required to instruct the jury to assess and declare the punishment as a part of their verdict.
No Missouri case has been cited or found which addresses the basic issue of the relationship between § 570.040 and § 558.016.3, under the circumstances here, where the state has sought to invoke both statutes by the use of the same two prior stealing convictions. There is, however, Missouri and out-state case law which affords guidance by analogy.
In Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), the Court addressed the question of whether a statute (Title 18 U.S.C., § 924(c)), authorizing imposition of enhanced penalties on a defendant who uses or carries a firearm while committing a federal felony, could be applied to a defendant who used a firearm in the course of a felony that was proscribed by Title 18 U.S.C., § 111 (), which itself authorized enhancement if a dangerous weapon was used. The Court held that the sentence received by the defendant could be enhanced only under the enhancement provision in Title 18 U.S.C., § 111, the statute which defined the felony defendant had committed.
The Court said:
Busic v. United States, supra, 100 S.Ct. at 1752.
The Court also said:
The court held that Title 18 U.S.C. § 924(c) "may not be applied at all in the present situation," and that Congress, in enacting that statute, intended to provide for enhanced penalties only for crimes not containing their own enhancement provisions, and not to provide an alternative enhancement provision applicable to all felonies and not to provide a duplicative enhancement provision which would permit double enhancement where the underlying felony was proscribed by a statute like Title 18 U.S.C. § 111. Id. at 1753.
In Lawson v. State, 295 Ark. 37, 746 S.W.2d 544, 545 (1988), the court considered this issue: whether it was proper ...
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