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State v. Gilmore

Court of Appeals of Missouri, Southern District, First Division

September 16, 2016

STATE OF MISSOURI, Plaintiff-Respondent,
v.
JOSHUA P. GILMORE, Defendant-Appellant.

         Appeal from the Circuit Court of Dade County Honorable James R. Bickel, Circuit Judge.

          OPINION

          DON E. BURRELL, J.

         Joshua P. Gilmore ("Defendant") was convicted, after a jury trial, of the enhanced class D felony of driving while revoked ("DWR"). See section 302.321.[1] Defendant does not dispute the facts of this case or argue that insufficient evidence supports his DWR conviction. Instead, he argues that insufficient evidence supports the enhancement of his DWR offense from a misdemeanor to a felony based on the "fourth or subsequent conviction for any other offense" provision in section 302.321.2 because the legislature intended that the qualifying offenses be felony offenses. We disagree and affirm the judgment of conviction and sentence.

         Standard of Review and Applicable Law

         Defendant's argument is not preserved for review because it was not presented to the trial court.[2] See State v. Collins, 328 S.W.3d 705, 707 (Mo. banc 2011). "Any issue that was not preserved can only be reviewed for plain error, which requires a finding that manifest injustice or a miscarriage of justice has resulted from the trial court error." State v. Severe, 307 S.W.3d 640, 642 (Mo. banc 2010). That being said, a sentence that exceeds the maximum authorized sentence for an offense constitutes plain error that results in manifest injustice.[3] Id.

         This court must determine whether the legislature's use of the phrase "any other offense" in section 302.321.2 encompasses only felony offenses. "When construing a criminal statute, an appellate court is to give effect to the legislature's intent by examining the plain language of the statute." State v. Stewart, 113 S.W.3d 245, 249 (Mo. App. E.D. 2003). If no statutory definition is provided (as here), appellate courts give words their plain and ordinary meaning, as supplemented (if necessary) with definitions from the dictionary. State ex rel. Richardson v. Green, 465 S.W.3d 60, 64 (Mo. banc 2015). If the statutory language is clear, the language should be applied as written, Kearney Special Rd. Dist. v. Cnty. of Clay, 863 S.W.2d 841, 842 (Mo. banc 1993), and "[c]ourts do not have the authority to read into a statute a legislative intent that is contrary to its plain and ordinary meaning." State v. Rowe, 63 S.W.3d 647, 650 (Mo. banc 2002).

         "A court will look beyond the plain meaning of the statute only when the language is ambiguous or would lead to an absurd or illogical result." Akins v. Dir. of Revenue, 303 S.W.3d 563, 565 (Mo. banc 2010). "A statute's provisions must be construed and considered together and, if possible, all provisions must be harmonized and every clause given some meaning." State v. Moore, 952 S.W.2d 812, 813 (Mo. App. E.D. 1997).

         Analysis

         "Any person convicted of [DWR] is guilty of a misdemeanor." Section 302.321.2. However, DWR is a class D felony when a defendant's prior convictions satisfy one of the following three enhancement provisions:

[(1)] Any person with no prior alcohol-related enforcement contacts as defined in section 302.525, convicted a fourth or subsequent time of driving while revoked or a county or municipal ordinance of driving while suspended or revoked where the defendant was represented by or waived the right to an attorney in writing, and where the prior three driving-while-revoked offenses occurred within ten years of the date of occurrence of the present offense; and
[(2)] [A]ny person with a prior alcohol-related enforcement contact as defined in section 302.525, convicted a third or subsequent time of driving while revoked or a county or municipal ordinance of driving while suspended or revoked where the defendant was represented by or waived the right to an attorney in writing, and where the prior two driving-while-revoked offenses occurred within ten years of the date of occurrence of the present offense and where the person received and served a sentence of ten days or more on such previous offenses[.] . . .
[(3)] [O]n the second or subsequent conviction pursuant to section 577.010 [driving while intoxicated] or a fourth or subsequent conviction for any other offense.

         Section 302.321.2 (emphasis added); Sayles, 491 S.W.3d at 273.

         The plain language of this statute, as supplemented with dictionary definitions, does not evidence an intent to limit "any other offense" to felony offenses. "Offense" has been defined as "[a] violation of the law; a crime, often a minor one." Black's Law Dictionary 1186 (9th ed. 2009). Offense has also been defined as "a transgression of the law; misdemeanor." The ...


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