State v. Stewart, 74473
| Decision Date | 30 June 1992 |
| Docket Number | No. 74473,74473 |
| Citation | 832 S.W.2d 911 |
| Parties | STATE of Missouri, Appellant, v. William Tommy STEWART, Respondent. |
| Court | Missouri Supreme Court |
William L. Webster, Atty. Gen., Geoffrey W. Preckshot, Asst. Atty. Gen., Jefferson City, for appellant.
Janet M. Thompson, Columbia, for respondent.
This case has been transferred, following opinion, from the Court of Appeals, Southern District. The crucial question before the Court is the interpretation of the elements the state must charge and prove to show "persistent offender" status under § 577.023, RSMo Cum.Supp.1991, 1 Missouri's provisions enhancing punishment for drunk driving offenses.
The respondent, Stewart, was charged with driving while intoxicated on April 1, 1989. Section 577.010, RSMo 1986. By an amended information he was also charged as being a prior (Class A misdemeanor) and a persistent (Class D felony) offender, resulting in automatic increased punishment. The charge alleged that Stewart entered pleas on February 24, 1986, and March 30, 1988, to DWI felonies. A jury found him guilty, and the court ultimately sentenced him as a prior offender to one year in the county jail.
As related to intoxicated-related traffic offenses, prior and persistent offenders are defined in § 577.023.1(1) as follows:
(2) A "persistent offender" is one who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses committed at different times within ten years of a previous intoxication-related traffic offense conviction; and
(3) A "prior offender" is one who has pleaded guilty to or has been found guilty of an intoxication-related traffic offense within five years of a previous intoxication-related traffic offense conviction.
Stewart persuaded the trial court that the state had failed to plead facts sufficient to support persistent offender status, since the dates of conviction were pled but the dates of commission of the two offenses were not. The southern district affirmed, holding the persistent offender definition ambiguous as to operative date, and applying the "rule of lenity" as re-defined in Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980). Simply stated this rule of statutory construction arises when there is an ambiguity in criminal prohibitions and "the penalties they impose." Bifulco at 387, 100 S.Ct. at 2252. The policy of lenity means a court will not increase the penalty when such an interpretation is based on no more than a "guess" as to legislative intent. Id. The southern district found the inclusion of "committed at different times" in the persistent offender definition ambiguous and then applied the "date of commission" rather than "date of conviction" as the operative date. The reasoning of the defendant and the court of appeals was that since an offense could be committed outside the ten-year window, even if conviction was within the statutory time period, "date of commission" was more lenient.
The state has appealed the southern district decision pursuant to § 547.200.2, RSMo 1986, and contends that Stewart should have been found to be a persistent offender. This appeal is appropriate, because the debate concerns not only an interpretation of this statute, but a split in decision between the districts, since the southern district's interpretation of § 577.023.1(1) is diametrically opposed to the western district's conclusion that the dates of conviction control in determining intoxication-related persistent offender status. State v. Conz, 756 S.W.2d 543 (Mo.App.1988). The issue on appeal to this Court is whether the date of commission or the date of conviction is the operative date in § 577.023.1(2). Initially, a comparison to the prior and persistent offender definitions in the general criminal statutes, found in § 558.016.2 and .3, results in an interesting similarity and may explain the current confusion. In § 558.016, RSMo Cum.Supp.1991, 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. A prior offender has simply "plead guilty to or been found guilty of one felony" § 558.016.2. The intoxication-related recidivist statute reads essentially the same, with the addition of the ten-year and five-year time limits.
The commission v. conviction dispute is overshadowed by a far more serious question as to the state's burden to prove prior and persistent intoxication-related offender status. It would be an abdication of this Court's duty to overlook a fundamental problem with determining who may be sentenced as a persistent offender and found guilty of a Class D felony under § 577.023.
The plain words of § 577.023.1(2) require "two or more ... offenses (whether commission or conviction dates are operative) ... within ten years of a previous ... conviction." (Emphasis added). The clear import of this language is to require two offenses within ten years of a previous conviction. There is no ambiguity or doubt here so as to trigger the rule of lenity. By the language the legislature has used, there must be two offenses within ten years of a previous offense, not two prior to the one for which enhancement is sought. "Previous" is defined in Webster's third new International Dictionary, Unabridged as follows:
1c: antecedent, prior
The long and short of this is that the charge and the proof required to find and punish a person as a persistent offender under § 577.023.1(2) must involve a total of three offenses prior to the one at bar. See § 577.023.12, RSMo Cum.Supp.1991. This may not have been the intent of the legislature, but the clear words of the statute govern interpretation. State v. Sweeney, 701 S.W.2d 420, 423 (Mo. banc 1985); State v. Harrison, 805 S.W.2d 241, 243 (Mo.App.1991). If the legislature meant to use the present charge as the operative event from which to determine the ten-year time limit, it should have said "within ten years of the present ... conviction" rather than "within ten years of a previous ... conviction." There must be a previous conviction and the state must plead two offenses or convictions within ten years of that previous conviction.
The language and reasoning of State v. Treadway, 558 S.W.2d 646, 653 (Mo. banc 1977), cert. denied 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978)...
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