Court of Appeals of Missouri, Western District, Fourth Division
FROM THE CIRCUIT COURT OF LAFAYETTE COUNTY The Honorable
Dennis A. Rolf, Judge
Before: Mark D. Pfeiffer, Chief Judge, Presiding, Lisa White
Hardwick and Cynthia L. Martin, Judges
WHITE HARDWICK, JUDGE.
Jo Bellamy appeals from the denial of his Rule 24.035 motion
for postconviction relief, following his guilty pleas on
charges of first-degree burglary, theft, and money
laundering. Bellamy contends the motion court clearly erred
in denying relief on his claim that the sentencing court
exceeded its authority when it sentenced him to a term of
imprisonment and restitution. For reasons explained herein,
we reverse and modify the judgment in part by removing the
order of restitution.
and Procedural History
March 30, 2011, Bellamy broke into a home in Saline County
and stole $25, 000 in gold and platinum coins. Bellamy sold
the coins to a third party, who paid him by issuing a check.
Bellamy then cashed the check at a bank. Bellamy pleaded
guilty on July 8, 2014, to first-degree burglary, theft of
property worth $25, 000 or more, and money laundering. The
court sentenced him to concurrent terms of 20 years on each
of the charges and ordered him to pay $100, 000 in
filed a pro se Rule 24.035 motion for
post-conviction relief, and his appointed counsel timely
filed an amended motion. One of his claims in his amended
motion was that the sentencing court exceeded its authority
when it sentenced him to a term of imprisonment and ordered
him to pay restitution. The motion court denied Bellamy's
motion without an evidentiary hearing. Bellamy appeals.
review the denial of a post-conviction motion for clear
error. Rule 24.O35(k). The motion court's findings and
conclusions "are clearly erroneous only if, after a
review of the entire record, the appellate court is left with
the definite impression that a mistake has been made."
Dobbins v. State, 187 S.W.3d 865, 866 (Mo. banc
2006) (citation omitted).
Point I, Bellamy contends the motion court clearly erred in
denying his claim that the sentencing court exceeded its
authority when it required him to serve a term of
imprisonment and to pay restitution. Bellamy asserts that,
when he committed the offenses, it was not permissible to
order a defendant both to serve a prison term and to pay
crimes occurred in March 2011. At that time, courts were
allowed to order a defendant convicted of a felony to pay
restitution as a condition of probation or parole.
§§ 557.011.2, 559.021.2, 559.100.2. Courts, however,
"lacked the authority to sentence a defendant convicted
of a felony to serve a term of imprisonment, and
simultaneously order the defendant to pay restitution."
State v. Schnelle, 398 S.W.3d 37, 47 (Mo. App.
2013). See also Zarhouni v. State, 313 S.W.3d 713,
715 (Mo. App. 2010); State v. Roddy, 998 S.W.2d 562,
565 (Mo. App. 1999).
changed in 2013, when the legislature amended Section
559.105.1 to provide that "[a]ny person who has been
found guilty of or has pled guilty to an offense may be
ordered by the court to make restitution." The amended
version of Section 559.105, which became effective on August
28, 2013, "repeal[ed] the prior prohibition against
requiring a prisoner both to serve a prison term and to pay
restitution." State ex rel. Strauser v.
Martinez, 416 S.W.3d 798, 805 (Mo. banc 2014) (Fischer,
J., concurring). As Bellamy was sentenced in July 2014, the
law in effect at the time of his sentencing permitted courts
to sentence a defendant to a prison term and to order him to
statute increases the punishment for a crime after it has
been committed and before the defendant has been sentenced,
it raises ex post facto concerns. Ex post facto laws are
prohibited under both the United States and Missouri
Constitutions. U.S. Const, art. I, § 9, cl. 3, and art.
I, § 10 cl. 1; Mo. Const, art. I, §13. "An ex
post facto law is a law that provides for punishment for an
act that was not punishable when it was committed or that
imposes an additional punishment to that in effect at the
time the act was committed." State v. Harris,414 S.W.3d 447, 449-50 (Mo. banc 2013) (citation omitted).
Section 559.105 is an ex post facto law as applied to Bellamy
if: "(1) it applies to conduct completed before the
statute's enactment, and (2) it increases the penalty for
the crime beyond what the law ...