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State ex rel. Parton v. Eighmy

Court of Appeals of Missouri, Southern District, First Division

July 21, 2017

STATE OF MISSOURI EX REL. NANETTE PARTON, Relator,
v.
THE HONORABLE ERIC EIGHMY, Respondent.

         ORIGINAL PROCEEDING IN PROHIBITION

          OPINION

          GARY W. LYNCH, J.

         PRELIMINARY WRIT QUASHED

         This case arises from the State's prosecution against Nanette Jo Parton ("Relator") of an alleged stealing offense in violation of section 570.030.[1] Relator filed a motion to dismiss the case because the prosecution was not commenced within one year of the alleged date of the offense by the filing of an information as required by section 536.036.5. This motion was denied by Respondent. Relator petitioned this court for a permanent writ of prohibition or mandamus requiring Respondent to dismiss the case. A preliminary writ of prohibition was issued directing Respondent to file an answer to the petition. The State filed an answer and brief on behalf of Respondent.

         Standard of Review

A writ of prohibition is appropriate whenever: 1) the trial court exceeds its personal or subject matter jurisdiction; 2) the trial court exceeds its jurisdiction or abuses its discretion to such an extent that it lacks the power to act as it did; or 3) there is no adequate remedy by appeal for the party seeking the writ and the "aggrieved party may suffer considerable hardship and expense as a consequence of the erroneous decision [of the lower court]."

State ex rel. Steeley v. Oswald, 147 S.W.3d 81, 82 (Mo. banc 2004) (quoting State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo. banc 1994)). In a prohibition proceeding, a relator has the burden to show that the trial court exceeded its authority, and "that burden includes overcoming the presumption of right action in favor of the trial court's ruling." State ex rel. Dixon v. Darnold, 939 S.W.2d 66, 69 (Mo.App. 1997).

         Factual and Procedural Background

         The State initiated the underlying criminal case by filing in the trial court a document denominated as "FELONY COMPLAINT" on October 8, 2013. The State thereafter filed a document denominated as "FELONY INFORMATION" on April 2, 2014. Both documents alleged that Relator,

in violation of Section 570.030, RSMo, committed the class B felony of stealing, punishable upon conviction under Section 558.011, RSMo, in that on or between September 9, 2012 and March 13, 2013, in the County of Taney, State of Missouri, [Relator] appropriated U.S. currency of the value of at least twenty-five thousand dollars, which property was in the charge of Colonnade / Grand regency Resorts, and [Relator] appropriated such property without the consent of Colonnade / Grand Regency Resorts and with the purpose to deprive it thereof.

         Over two years later, on September 30, 2016, Relator moved to dismiss the case because stealing in violation of section 570.030 is a misdemeanor, section 556.036.2(2) requires that prosecutions for misdemeanors must commence within one year of the offense, according to section 556.036.5 a prosecution for a misdemeanor is commenced when the information is filed, and the document denominated "FELONY INFORMATION" filed on April 2, 2014, was not filed within one year of the expiration of the charging period-March 13, 2013. The trial court denied Relator's motion.

         Discussion

         Consistent with her motion to dismiss in the trial court, Relator's only point relied on states:

Relator is entitled to a writ of prohibition to prohibit Respondent, the Honorable Eric Eighmy, from taking any further action in her case, other than to dismiss it with prejudice, because Respondent is without authority to take any action in her case in that the statute of limitations in this case has already run since Relator's charge is a misdemeanor and ...

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