State v. Kraus

• Citation: 530 S.W.2d 684
• Decision Date: 18 December 1975
• Docket Number: No. 59135,59135
• Parties: STATE of Missouri, Respondent, v. Steve KRAUS, Appellant.
• Court: United States State Supreme Court of Missouri

Page 684

530 S.W.2d 684

STATE of Missouri, Respondent, v. Steve KRAUS, Appellant.

No. 59135.

Supreme Court of Missouri, En Banc.

Dec. 18, 1975.

Victor Tell Neff, Barry & Neff, Jefferson City, for appellant.

John C. Danforth, Atty. Gen., William Arnet, Asst. Atty. Gen., for respondent.

HOLMAN, Judge.

The defendant-appellant moved, under the terms and provisions of Section 195.290, ¹ to expunge records of his arrest, trial and conviction for the offense of selling marijuana. The trial court denied the motion and entered judgment accordingly. The defendant appealed to the Court of Appeals, Kansas City District, which court reversed the judgment and remanded the cause for further proceedings in accordance with its opinion. Upon respondent's application we ordered the case transferred and it will be determined here the same as on original appeal. Art. V, Sec. 10, Mo.Const. We affirm.

On April 3, 1972, appellant was convicted of selling marijuana. Appellant was 20 years of age at the time of his conviction. On June 28, 1972, the appellant was placed on judicial probation for a period of three years. On January 16, 1973, approximately six and a half months after he was placed on probation, appellant filed his motion to expunge all official records and recordations of his arrest, trial and conviction. At that time, appellant was 21 years of age. On May 21, 1973, almost eleven months after the probation order, a hearing on this motion was had before the same court that sentenced appellant. Appellant and his probation officer testified that appellant had complied with the conditions of his probation, had committed no additional offense, had been steadily employed, and lived at home with his parents. The State offered no evidence and does not dispute the facts heretofore stated.

The trial court, at the conclusion of the hearing, made the following ruling: 'Well, this man was placed on probation on June 28th, 1972 for a period of 3 years. He is still on probation. The term of probation has not been terminated. Under the statute, he can't expunge this from the record until the term of probation has been served. The motion to expunge is denied.'

The issue involved on this appeal is the interpretation to be given to the language of Section 195.290. That section reads as follows: 'After a period of not less than six months from the time that an offender was placed on probation by a court, such person, who at the time of the offense was twenty-one years of age or younger, may apply to the court which sentenced him for an order to expunge from all official records, . . . and all recordations of his arrest, trial and conviction. If the court determines, after a hearing and after reference to the controlled dangerous substances registry, that such person during the period of such probation and during the period of time prior to his application to the court under this section has not been guilty of any offenses, or repeated violation of the conditions of such probation, he shall enter such order. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied prior to such arrest and conviction. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest or trial or conviction in response to any inquiry made of him for any purpose.'

The appellant asserts that he presented undisputed evidence that he qualified to have the records of his conviction expunged and that he was not required to wait to request such order until the end of his probationary period. The State asserts that while provisions of Section 195.290 permit the filing of a motion to expunge after six months from the date of probation, the order to expunge cannot be entered until the expiration of the full probationary period and that the trial court was free from error in so holding.

The primary rule of statutory construction is to ascertain the intent of the lawmakers from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning. State ex rel. Dravo Corporation v. Spradling, 515 S.W.2d 512 (Mo.1974); Missouri Pacific R.R. Co. v. Kuehle, 482 S.W.2d 505 (Mo.1972); State v. Brady, 472 S.W.2d 356 (Mo.1971); State ex rel. Cooper v. Cloyd, 461 S.W.2d 833 (Mo. banc 1971).

The purpose and object of the statute must always be considered. Edwards v. St. Louis County, 429 S.W.2d 718 (Mo. banc 1968). The basic intent of the legislature when it enacted Section 195.290 was to provide a procedure whereby a youthful offender under Chapter 195, who had been convicted and placed on judicial probation and who was shown to have been free from further transgression could move to have the record expunged and be relieved from the life-long burden of a criminal conviction with all of its detrimental results.

Section 195.290 was enacted in 1971 as a part of S.C.S.H.C.S.H.B. 69. By that Act the General Assembly adopted the 'Uniform Controlled Substances Act' consisting of 36 sections. A review of the Act will demonstrate that it substantially covers the drug field. It lists many controlled substances, provides the method for the legal sale of certain drugs, defines drug offenses, provides the penalties for violation thereof and contains other sections relating generally to controlled substances.

When the first two sentences of Section 195.290 are considered together there appears to be some ambiguity as to the precise time it becomes the duty of the court to enter the order of expunction. Considered alone, however, the second sentence is clearly in accord with the ruling of the trial court. It provides that if the court finds that the applicant 'has not been guilty of any offenses or repeated violation of the conditions of such probation--during the period of such probation and during the period of time prior to his application to the court' it shall enter such order. That sentence, which as we have indicated, is clear and precise, constitutes the essence of the section.

In considering the meaning of the first sentence it may be well to bear in mind that legislative enactments are not always faultlessly prepared and hence courts are sometimes called upon to determine the legislative intent. This is demonstrated by the fact that this section refers to the 'controlled dangerous substances registry' and that an expert from the state division of health testified that no such registry existed in this state and he was not sure that there was a federal registry.

As indicated, appellant contends that he was entitled to file his application after he had been on probation for at least six months and that the court was required to enter the order of expunction upon proof of proper conduct during the time he was on probation prior to the filing of his application regardless of the length of the original period of probation; that the order would automatically terminate the period of probation.

We do not construe the first sentence of the section in accordance with appellant's contention. To do so would indicate that the lawmakers intended to repeal portions of our judicial probation laws by implication. Section 549.071 provides that 'In the case of a felony offense no probation under this chapter shall be granted for a term of less than one year, and no probation shall be granted for a term of longer than five years. In the case of a misdemeanor offense no probation shall be granted for a term of longer than two years. The court may extend the term of the probation, but no more than one extension of any probation may be ordered.' If appellant's contention is correct the court would lose control (in drug cases) of the period of probation given it by Section 549.071. A court could be required to terminate probation (by expunction) in slightly more than six months even though it may have been the opinion and desire of the court that such continue for as much as five years. We cannot reasonably attribute that intention to the lawmakers. And this conclusion is fortified by the well established rule that "'Repeals by implication are not favored--in order for a later statute to operate as a repeal by implication of an earlier one, there must be such manifest and total repugnance that the two cannot stand; where two acts are seemingly repugnant, they must, if possible be so construed that the latter may not operate as a repeal of the earlier one by implication; if they are not irreconcilably inconsistent, both must stand."' State ex rel. Preisler v. Toberman, 364 Mo. 904, 269 S.W.2d 753, 754 (1954).

It is well settled that statutes relating to the same or similar subject matter even though enacted at different times and found in different chapters, are in pari materia and must be considered together when such statutes shed light on the statute being construed. City of St. Louis v. Carpenter, 341 S.W.2d 786, 788 (Mo.1961).

We have arrived at a construction of the six months requirement of the first sentence which we consider to be in harmony with the second sentence of the section as well as with the general probation laws.

Chapter 195 encompasses both misdemeanor and felony offenses. It accordingly follows that youthful offenders convicted of either a felony or misdemeanor may apply under the provisions of Section 195.290. The minimum period of probation required in felony cases is one year and there is no minimum period for probation for misdemeanor offenses. It is also true that under the provisions of Section 549.111(1) the court is given the discretionary power to order a discharge from probation at any time. Since one convicted of a misdemeanor may be placed on probation for a period of less than six months and since the court has the discretionary power to discharge from...