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Bellamy v. State

Court of Appeals of Missouri, Western District, Fourth Division

August 8, 2017

BILLY JOE BELLAMY, Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL 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

          LISA WHITE HARDWICK, JUDGE.

         Billy 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.

         Factual and Procedural History

         On 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 restitution.

         Bellamy 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.

         Standard of Review

         We 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).

         Analysis

         In 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 restitution.

         Bellamy's 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.[1] 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).

         This 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 pay restitution.

         When a 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 ...


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