Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Filbeck

Court of Appeals of Missouri, Southern District, First Division

November 17, 2016

STATE OF MISSOURI, Respondent,
v.
GARRY L. FILBECK, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY Honorable Alan M. Blankenship, Judge

         REVERSED AND REMANDED WITH DIRECTIONS

          Before Scott, P.J., Bates, J. and Sheffield, J.

          PER CURIAM.

         Garry Filbeck appeals his bench-tried convictions on two counts of felony stealing. The state's theory was that Filbeck aided and abetted Howard Perryman's theft of six cattle from Danny Vaughn on February 12, 2012, and that the thefts were felonies per § 570.030.3(3)(j), [1] which provided that "any offense in which the value of property or services is an element is a class C felony if … [t]he property appropriated consists of … [a]ny animal considered livestock …."

         This court affirmed Filbeck's convictions pursuant to Rule 30.25(b) on April 6, 2016. On October 6, 2016, our supreme court took transfer and retransferred the case to this court to reconsider in light of State v. Bazell, 497 S.W.3d 263 (Mo. banc August 23, 2016).

         We invited the parties to file further suggestions. In response, the State opines that Bazell entitles Filbeck "to a remand to be resentenced to class A misdemeanors for his two counts of stealing" because

Under Bazell, the sentencing enhancement for the enumerated list of types of property set out in § 570.030.3(3) does not apply to the crime of stealing those types of property. Id. [Filbeck] was similarly charged with an enhancement under § 570.030.3(3). The enhancement provision for livestock relied on in this case, § 570.030.3(3)(j), is not in any meaningful way distinguishable from the enhancement provision for firearms relied on in Bazell.

         We agree. See State v. McMillian, No. WD 79440, slip op. at 5 (Mo.App. Oct. 18, 2016) ("Bazell made no distinction between the various ways the enhancement provision could be triggered…. The specific character of the enhancement sought under section 570.030.3 is irrelevant ….").

         Although we must reverse and remand for resentencing per Bazell, Filbeck's arguments for further relief fail.

         Limitations Defense Waived

         On retransfer, Filbeck argues from McMillian, slip op. at 6, that his charges should be dismissed with prejudice because they were not filed within the one-year statute of limitations for misdemeanors (§ 556.036.2). Because Filbeck did not raise this defense in the trial court (contrast McMillian, slip op. at 2-3), he has waived any such complaint. State v. Cotton, 295 S.W.3d 487, 488-92 (Mo.App. 2009).

         Proof Sufficient

         There is no real issue as to Perryman's longtime, extensive stealing network; Filbeck's participation for years prior to the Vaughn theft; or that Filbeck committed crimes here as ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.