Court of Appeals of Missouri, Western District, Special Division
Appeal from the Circuit Court of Caldwell County, Missouri. The Honorable R. Brent Elliott, Judge.
For Respondent: Chris Koster, Attorney General, Gregory L. Barnes, Assistant Attorney General, Jefferson City, MO.
For Appellant: Ellen H. Flottman, Appellate District Defender, Margaret M. Johnston, Assistant Public Defender, Columbia, MO.
Mark D. Pfeiffer, Presiding Judge. Gary D. Witt, Judge, and Zel M. Fischer, Special Judge, concur.
Mark D. Pfeiffer, Presiding Judge
Robert E. Wheeler (" Wheeler" ) appeals the judgment of the Circuit Court of Caldwell County, Missouri (" trial court" ), sentencing him as a persistent offender under section 577.023, after a jury found him guilty of driving while intoxicated (" DWI" ), § 577.010. Wheeler argues in his point relied on that the trial court erred in sentencing him as a persistent DWI offender.
Factual and Procedural Background
Wheeler does not challenge the sufficiency of the evidence to prove that he was
guilty of DWI. Nor does he claim that he was not properly charged as a persistent DWI offender. Rather, he challenges whether the trial court actually found him to be a persistent DWI offender and the sufficiency of the evidence to prove his persistent DWI offender status. Therefore, only the facts dispositive to the issue on appeal will be discussed.
On June 8, 2012, Wheeler was arrested for DWI. Subsequently, the State charged him with DWI as a persistent offender, an enhanced class D felony, under sections 577.010 and 577.023. The State alleged that Wheeler " had pleaded guilty to, been found guilty of, or was convicted of driving while intoxicated" in the State of Florida: on April 29, 2009, for events occurring on or about February 16, 2009; and on October 30, 1990, for events occurring on or about April 30, 1990.
At a hearing on the morning of trial, prior to the seating of the venire panel, the State offered into evidence without objection Exhibits 8 and 9, as evidence of prior DWIs for the purpose of enhancing the crime to a D felony, and Exhibit 10, as evidence of a prior felony for sentencing purposes:
[Prosecutor]: We have the prior DWIs that enhance it to a D felony.
The Court: Okay. All right. Does the defense have any objection to the introduction of those exhibits?
[Defense Counsel]: No, Your Honor.
The Court: All right. And those were 8, ...