Court of Appeals of Missouri, Southern District, First Division
STATE OF MISSOURI EX REL. NANETTE PARTON, Relator,
THE HONORABLE ERIC EIGHMY, Respondent.
PROCEEDING IN PROHIBITION
W. LYNCH, J.
case arises from the State's prosecution against Nanette
Jo Parton ("Relator") of an alleged stealing
offense in violation of section 570.030. 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.
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).
and Procedural Background
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
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
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.
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 ...