Court of Appeals of Missouri, Western District, Fourth Division
from the Circuit Court of Cole County, Missouri The Honorable
Patricia S. Joyce, Judge
Before: Mark D. Pfeiffer, Chief Judge, Presiding, Victor C.
Howard, Judge and Gary D. Witt, Judge
D. Witt, Judge
State of Missouri ("State") appeals the order of
the Circuit Court of Cole County granting Tatum
McMillian's ("McMillian") motion to dismiss
that sought the dismissal of his indictment based on the
expiration of the statute of limitations. We affirm.
conduct giving rise to McMillian's indictment consists of
the alleged underreporting of his earnings and his consequent
receipt of unemployment benefits to which he was not
entitled. The State alleged McMillian received these
undeserved benefits from July 26, 2010 to June 4, 2011.
State filed its first complaint against McMillian on May 31,
2013 in the Circuit Court of Howell County and charged him
with the class C Felony of stealing by deceit, section
570.030 ("Howell County Prosecution").
Immediately prior to the preliminary hearing in that case,
McMillian filed a motion to dismiss, arguing that the
State's charges violated double jeopardy, unlawfully
increased his range of punishment, and improperly charged him
under section 570.030. The preliminary hearing was cancelled,
and the State was given a chance to respond to
McMillian's motion to dismiss. The court granted
McMillian's motion to dismiss by order dated December 30,
2013. The State filed its notice of appeal on January 6,
2014, and the Court of Appeals for the Southern District
dismissed the appeal because it held that the dismissal of
the complaint prior to the preliminary hearing is not a final
appealable judgment. See State v. McMillian, 455
S.W.3d 462 (Mo. App. S.D. 2015).
February 11, 2015, the State again charged McMillian by
indictment with one count of the class C felony of stealing
by deceit, section 570.030, in the Circuit Court of Cole
County ("Cole County Prosecution"). McMillian again
filed a motion to dismiss ("Motion to Dismiss")
based on the same arguments raised in the prior proceeding,
but, in addition, argued that the statute of limitations on
the alleged criminal conduct had expired. McMillian argued
that the statute of limitations began to run on June 4, 2011,
the last day the State had alleged criminal conduct, and
expired three years later on June 4, 2014.
also argued that even if the statute of limitations were
tolled during the Howell County Prosecution, the statute
would have been tolled only from the filing of the complaint
on May 31, 2013 to December 30, 2013, the date on which the
circuit court dismissed the Howell County Prosecution.
McMillian argues if the statute of limitations were tolled
for this period, the expiration would have occurred on
January 4, 2015. As the State refiled its indictment in Cole
County on February 11, 2015, McMillian argued that the
statute of limitations had still expired.
State responded and argued that the statute of limitations
should have been tolled during the entirety of the Howell
County Prosecution, including during the direct appeal of the
prior dismissal to the Southern District of the Court of
Appeals. The circuit court apparently rejected the
State's argument and granted McMillian's Motion to
Dismiss solely because the court found the statute of
limitations had expired prior to the refiling of the
indictment in Cole County. The State now appeals.
determination of whether or not a statute of limitations
applies is a question of law and is reviewed de novo
by this court." State v. Maples, 306 S.W.3d
153, 155 (Mo. App. W.D. 2010). Whether the statute of
limitations should be tolled is similarly a question of law
and must be reviewed de novo. See State v.
Corley, 251 S.W.3d 416, 418-21 (Mo. App. S.D. 2008).
That determination requires us to engage in statutory
interpretation, which is also a question of law that is
reviewed de novo. When engaging in statutory interpretation,
our goal is to ascertain the intent of the legislature and
give effect to that ...