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State v. Fleming

Court of Appeals of Missouri, Western District, Second Division

March 13, 2018

STATE OF MISSOURI, Respondent,
v.
LADAVID C FLEMING, Appellant.

         Appeal from the Circuit Court of Clay County, Missouri The Honorable Shane Terril Alexander, Judge

          Before: James Edward Welsh, Presiding Judge, Alok Ahuja, Judge, Anthony Rex Gabbert, Judge

          ANTHONY REX GABBERT, JUDGE

         LaDavid Fleming appeals a trial court's order to pay $1250 in restitution, after a jury convicted him of burglary in the second degree, pursuant to Section 569.170.[1] The court sentenced him to seven years imprisonment, in addition to ordering restitution. Fleming raises two points on appeal. First, he alleges the trial court erred, because it lacked authority to order restitution under Section 559.105, in that there was no evidence any victim suffered a quantifiable loss due to Fleming's offense. Second, he argues the trial court erred, because its failure to re-address the restitution amount at the reconvened sentencing hearing denied Fleming due process of law.[2]Because we find no evidence of quantifiable loss due to Fleming's burglary, we vacate the restitution order.

         Background

         On the evening of Saturday, May 3, 2014, Fleming was discovered rummaging through a desk drawer in the sales office of Finnigan's, a banquet venue. Finnigan's was closed and the sales office lights were off. The manager who found Fleming in the unlit office escorted him back to the bowling alley where Fleming had just been. The bowling alley and Finnigan's are in the same building. Upon returning to the office, the manager found fresh pry marks on the office door and wood shavings on the floor nearby. He notified the police. A responding officer observed evidence of a possible break-in, located Fleming at the bowling alley, issued him a trespass notice, and then escorted him off the premises.

         On Monday, May 5, 2014, the salesperson, in whose office Fleming had been discovered, noticed the newly damaged door and found that a $1250 check from Vocational Services, Inc. was missing. The check was received on Friday, May 2, 2014.

         Anastacia Carter, Fleming's acquaintance, testified that Fleming gave her a fraudulent check on May 6, 2014. The check was written on the same checking account as the $1250 check Finnigan's had received from Vocational Services. Carter further testified Fleming drove her to a bank to cash the check. While Carter was inside the bank, Fleming waited outside in Carter's car. The bank contacted Vocational Services' executive director to determine whether the organization had issued the check Carter had presented. Vocational Services informed the bank that the check in question had not been issued and that two checks that had cleared had also not been issued. The checks that cleared were written on the same account as the fraudulent check Carter was presenting to the bank. Instead of cashing that check, the bank called the police, who arrested Carter while Fleming drove off. Carter later identified Fleming in a lineup as the man who had given her the fraudulent check.

         Fleming was charged as a persistent offender with one count of second-degree burglary committed on May 3, 2014. The persistent offender finding stemmed from Fleming's two prior forgery convictions. On March 3, 2015, a trial jury found Fleming guilty as charged, and the court sentenced Fleming to seven years' imprisonment and ordered him to pay $1250 in restitution.

         Point I

         Fleming first argues the trial court erred, because it lacked authority to order restitution under Section 559.105, in that there was no evidence of quantifiable loss due to Fleming's offense. We review the trial court's sentencing decision for abuse of discretion. State v. Fields, 480 S.W.3d 446, 450 (Mo. App. 2016). "A trial court abuses its discretion if the ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. (citation and internal quotes omitted). Finding no evidence of quantifiable loss due to Fleming's burglary, we vacate the trial court's restitution order.

         Chapter 559 invests the trial courts with broad authority to determine the conditions of a defendant's parole or probation. Section 559.021.1 states, "The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the defendant will not again violate the law." Section 559.100.2 provides the court "shall determine any conditions of probation or parole for the defendant that it deems necessary to ensure the successful completion of the probation or parole term." Section 559.105.1 provides, "Any person who has been found guilty or has pled guilty to an offense may be ordered by the court to make restitution to the victim for the victim's losses due to such offense."

         In State ex rel. Bowman v. Inman, 516 S.W.3d 367 (Mo. banc 2017), our Supreme Court describes how Section 559.105.1 limits the discretionary authority granted under Sections 559.021 and 559.100:

There is no doubt that section 559.105.1 limits the broad authority granted under sections 559.021 and 559.100. Not only must statutes on the same subject be read together, Lane v. Lensmeyer, 158 S.W.3d 218, 226 (Mo. banc 2005), but it would be absurd to conclude the General Assembly intended to impose a causation requirement for restitution under Section 559.105.1, while allowing for restitution unrestrained by "but for" causation under Sections 559.021 and 559.100. Instead, this Court concludes the General Assembly intended sections 559.021 and 559.100 to authorize trial courts to require restitution as a condition of probation but intended also that any exercise of that authority would comply with the causation ...

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