(Download) "State Missouri v. Donald Ray Myers" by Springfield District Missouri Court of Appeals # Book PDF Kindle ePub Free
eBook details
- Title: State Missouri v. Donald Ray Myers
- Author : Springfield District Missouri Court of Appeals
- Release Date : January 18, 1971
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 59 KB
Description
PER CURIAM : Defendant was charged in the Circuit Court of Laclede County with the second offense misdemeanor of operating
a motor vehicle while in an intoxicated condition. § 564.440. 1 Out of the hearing of the jury, the Trial court
conducted a pretrial investigation of defendant's previous conviction and determined that on September 27, 1964, "defendant
was convicted of driving an automobile while in an intoxicated condition, a misdemeanor ... and paid a fine of" $10 and costs
of $11.55 "in the Magistrate Court." 2 Thereafter, the court announced "the only issue that will be submitted to the jury
will be the guilt or innocence of the defendant." Following trial, the jury returned a verdict of guilty and the court assessed
"the defendant's punishment at confinement in the Laclede County jail for a term of four months." Defendant's post trial motions
were overruled and he appealed prematurely before allocution, sentence and judgment. State v. Myers, Mo. App., 467 S.W.2d
577. Subsequent to remand and proper procedures, defendant has again appealed. His complaint, as in the court nisi, is that
the trial court erroneously applied § 556.280 3 (the Habitual Criminal Act) to a misdemeanor case and thereby
deprived him of the right to have the jury determine his punishment as well as his guilt or innocence. The Habitual Criminal Act (§ 556.280) is highly penal and must be strictly construed. State v. Hacker, Mo., 291
S.W.2d 155, 157(1). As it appears in the act, "punishable by imprisonment in the penitentiary" is a term of art (State v.
Kiddoo, Mo., 354 S.W.2d 883, 885) and constitutes an exact synonym for "felony," which is defined in § 556.020.
4 The authority for a trial court to assess punishment in a jury case under the Habitual Criminal Act is properly exercised
only where a defendant previously has been convicted of a felony [State v. Ginnings, Mo., 466 S.W.2d 675, 677(1); State v.
Briggs, Mo., 435 S.W.2d 361, 362; State v. Garrett, Mo., 416 S.W.2d 116, 120(7)] and has been "charged with having thereafter
committed a felony." § 556.280. No authority is derived from § 564.440 (intoxicated driving) for a trial
court to assess punishment, and when the Habitual Criminal Act is not applicable, defendant is entitled to have the jury determine
his punishment. State v. Young, Mo., 366 S.W.2d 386, 390; § 556.280(2).
 "State Missouri v. Donald Ray Myers" by Springfield District Missouri Court of Appeals # Book PDF Kindle ePub Free){kind=link}