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State v. McMillian

Court of Appeals of Missouri, Western District, Fourth Division

October 18, 2016

STATE OF MISSOURI, Appellant,
v.
TATUM CLARK McMILLIAN, Respondent.

         Appeal 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

          Gary D. Witt, Judge

         The 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.

         Factual Background

         The 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.

         The 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[1] ("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).

         On 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.

         McMillian 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.

         The 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.

         Standard of Review

         "The 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 ...

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