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State v. Emery1/28/2003
Opinion Vote: REVERSED AND REMANDED.
All concur.
Opinion:
Ricky Lynn Emery appeals from his conviction for driving while intoxicated (DWI) and assault in the second degree. The trial court sentenced Emery without a jury verdict as to sentence, which is the manner prescribed for sentencing a prior or persistent offender under sections 558.016 and 557.036.4. Emery contends, and the state agrees, that he was improperly sentenced where the state failed to offer evidence that he was a prior or persistent offender as required by section 558.021.2. The parties disagree, however, as to how this Court should remedy the error. Emery contends that his assault conviction should be vacated and that he should receive a new trial. The state requests remand for resentencing and an opportunity to prove Emery's prior and persistent offender status.
The parties agree that Emery's conviction for DWI should be vacated because the convictions for DWI and second degree assault, arising from the same incident, violate Emery's double jeopardy right because DWI is a lesser included offense of second degree assault.
After opinion by the Court of Appeals, Southern District, this Court granted transfer. This Court has jurisdiction. Mo. Const. art. V, sec. 10.
The DWI conviction is vacated. The second-degree assault conviction is vacated, and the case is remanded for resentencing without regard to prior or persistent offender status. On remand, the trial court judge will sentence Emery because, for reasons set out below, Emery has waived his right to a jury-recommended sentence.
Facts
Emery and Bob Fullington were at a party at Norma Gean's house in Mountain Grove, Missouri, where, from 11:30 p.m. on January 27, 2001, until 3:30 p.m. the next afternoon, they drank alcohol and played cards. When Emery and Fullington got into Fullington's truck to leave the party, Emery was in the driver's seat. Gean, believing Emery was too intoxicated to drive, refused to give him the keys. Fullington then switched places with Emery and, with Fullington driving, the two left.
Fullington drove to a café a couple of blocks away, stopped the truck and switched places with Emery. Emery then drove the truck south on Route 95. He ran a stop sign. The truck struck the driver's side of an approaching sport utility vehicle, causing the SUV to roll over many times. As a result of the collision, Cheryl Todd, the SUV driver, suffered fractured ribs and bruises on her arm, leg and head.
Emery was charged with DWI, section 577.010, and second-degree assault, section 565.060. The information charged that Emery was a prior and persistent offender under sections 558.016 and 557.036.4. Under section 558.016, a prior offender is one who has pled guilty to or has been found guilty of one felony; a persistent offender is one who has pled guilty to or has been found guilty of two or more felonies committed at different times. The state is required to plead facts in the information or indictment that the defendant is a prior or persistent offender and must offer evidence to prove such status prior to the case's submission to the jury. Section 558.021. If the court finds that a defendant is a prior or persistent offender, the judge sentences the defendant rather than allowing the jury to recommend a sentence. Section 557.036.2(2). Additionally, if the court finds that a defendant is a persistent offender, the defendant is subject to extended maximum terms of imprisonment under section 558.016.7.
In this case the information described two instances, one in 1991 and one in 1997, where Emery allegedly pled guilty to felony DWI. However
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