Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF STONE COUNTY Honorable Alan M.
AND REMANDED WITH DIRECTIONS
Scott, P.J., Bates, J. and Sheffield, J.
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),  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
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).
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.
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
we must reverse and remand for resentencing per
Bazell, Filbeck's arguments for further relief
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).
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