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09/21/93 STATE MISSOURI v. NORMAN K. GREER

September 21, 1993

STATE OF MISSOURI, RESPONDENT,
v.
NORMAN K. GREER, APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY, MISSOURI. The Honorable John R. Hutcherson, Judge

Before Spinden, P.j., Fenner and Hanna, JJ.

The opinion of the court was delivered by: Fenner

Appellant, Norman K. Greer, appeals his conviction, after trial by jury, for driving while intoxicated. Upon his conviction, Greer was sentenced by the court as a persistent offender.

In his first point on appeal, Greer argues that the court committed plain error by sentencing him as a persistent driving while intoxicated offender. Greer argues specifically that the State did not allege and prove that he had the requisite prior intoxication-related traffic offense convictions which allowed him to be sentenced as a persistent offender.

Under Rule 30.20, the sufficiency of a sentence is a jurisdictional question that must be reviewed even if not properly preserved. State v. Moore, 633 S.W.2d 140, 148 (Mo. App. 1982).

Section 577.023, RSMo Supp. 1992, *fn1 allows for enhancement of sentence in intoxication-related traffic offenses. Section 577.023.1 defines a persistent offender 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. . .

The clear import of this statutory language is to require two offenses within ten years of a previous conviction. State v. Stewart, 832 S.W.2d 911, 913 (Mo. banc 1992). 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. Id. The charge and the proof required to find and punish a person as a persistent offender under section 577.023.1(2) must involve a total of three offenses prior to the one at bar. Id. The offense for which the enhancement to felony status is sought is irrelevant to the persistent offender determination. In order for a penalty for an intoxication-related traffic offense to be enhanced to persistent offender status, there must be a previous conviction and the State must plead two offenses or convictions within ten years of that previous conviction. Id.

In the case at bar, Greer was charged and shown to have been convicted of driving while intoxicated on only two prior occasions, April 6, 1983 and October 16, 1984. Therefore, the State failed to satisfy the requirement of Stewart that there be a total of three prior intoxication-related traffic offenses.

The trial court erred by sentencing Greer as a persistent offender. The appropriate remedy is reversal and remand for Greer to be resentenced as a prior offender. *fn2

In his second point on appeal, Greer argues that the trial court erred in denying his proffered instructions on duress. Greer contends that the evidence showed that "he entered and drove his vehicle to escape from and avoid harm from a group of individuals armed with baseball bats who chased Greer to his vehicle." Before remanding for resentencing in accordance with Greer's first point, we must first determine if he is entitled to a new trial on the basis of his second point.

The defense of duress is available when a defendant is coerced to engage in the conduct charged by the threat or use of unlawful physical force of such a degree that a person of reasonable firmness could not resist. § 562.071.1, RSMo 1986; State v. Coats, 835 S.W.2d 430, 435 (Mo. App. 1992). The defense of duress is not available when the defendant recklessly places himself in a situation in which it is probable that he will be subjected to the force or threatened force that he claims he could not resist. § 562.071.2(2), RSMo 1986.

The two instructions submitted by Greer, and refused by the trial ...


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