In an opinion that went largely unnoticed, the Missouri Supreme Court issued a ruling Tuesday that had the effect of making most stealing offenses no longer felonies thanks to an apparently inadvertent change to state law way back in 2002. The far-reaching decision sent criminal defense attorneys across the state scrambling.
The case – State v. Bazell – was brought by a woman who had been convicted of multiples felonies for stealing firearms, among other things, in a burglary case. The court said the firearm felonies should be knocked down to misdemeanors because a portion of the state’s criminal code designating certain types of offenses as felonies is written in a way that doesn’t make it applicable to the state’s definition of stealing itself.
“If the words are clear, the Court must apply the plain meaning of the law,” the opinion said. “When the meaning of a statute is clear, the Court should not employ canons of construction to achieve a desired result.”
Because of the ruling, Missourians who have been charged with felonies for a number of types of stealing offenses stand to have their convictions knocked down to misdemeanors, according to the public defender who represented the defendant in Bazell.
Ellen H. Flottman, who is the district defender of the Central Appellate Office of Missouri State Public Defender System, told TPM that the opinion was “very broad” and applies not just to firearm charges involved in the case, but to an assortment of stealing crimes previously treated as felonies in the same subparagraph of criminal code.
“Those are going to be misdemeanors as well,” she said.
The court found an issue in how two provisions in Missouri’s criminal code interact. The first provision — known as section 570.030.1 or “subparagraph 1” — defines stealing as “appropriat[ing] property or services of another with the purpose to deprive him or her thereof, either without his consent or by means of deceit or coercion.” The second provision — 570.030.3 or “subparagraph 3” — was legislated into the code in 2002 as an enhancement that classified certain types of offenses as Class C felonies as it pertains to “any offense in which the value of property or services is an element.”
The problem, the court said in its opinion Tuesday, is that line means enhancement is applicable in cases “in which the value of the property or services is an element,” which is not how stealing is defined in subparagraph 1.
“The value of the property or services appropriated is not an element of the offense of stealing,” the court said, and thus subparagraph 3 is not relevant to stealing offenses.
“We cannot know why the legislature, in 2002, decided to amend section 570.030.3 to add the requirement that only offenses for which ‘the value of property or services is an element’ may be enhanced to a felony, but this is what the legislature clearly and unambiguously did,” the court said.
Subparagraph 3 covers a whole assortment of stealing crimes, including the stealing of explosives, credit cards, motor vehicles, property deeds, anything worth between $500-$25,000 and in any case in which the suspect physically takes something from the victim’s person. Additionally, subparagraph 8 – which designates stealing anything worth more than $25,000 as a Class B felony – has similar language, and thus is no longer applicable as well, public defenders believe.
Because of Tuesday’s ruling, anyone who was charged with a felony for those kinds of crimes has a chance to get it brought down to a misdemeanor, as long as it’s for a crime after 2002, when the language was added, Flottman said.
“If you’re currently charged, it’s going to affect what you plead to or what you’re tried on,” Flottman said. “That’s probably going to be the biggest set of people that it’s going to help.”
Anyone with a conviction currently on direct appeal will be able to raise Tuesday’s ruling in their argument, Flottman said. “We’ve got several in our office that we’re looking at really quickly to fix that,” she said.
And, according to Flottman, even those whose felony convictions are final may be able to get their punishment reduced to a misdemeanor level through a state habeas corpus action.
“There’s precedent for that. There’s cases where the court has said, ‘Well, you have been sentenced to too high of an amount so you can challenge that state habeas,’” Flottman said.
A memo obtained independently by TPM (posted below) that went out to attorneys from the Missouri State Public Defender’s Office pointed out that there a few classes of stealing felonies that went untouched by Tuesday’s ruling because they did not rely on the offending language, including stealing livestock over a certain value or when the crime is a third offense.
The memo went on:
This is a far-reaching decision. We have not digested all of its consequences. But we do know that you should stop pleading to felony stealing where the charge relates back to 570.030.1, and you should attack judgments for such felony stealings where the client is facing probation revocation. This has implications for the statute of limitations (one year on a misdemeanor). This has implications for convictions used to enhance. This has implications for inmates serving sentences for felonies.
The state Public Defender’s Office also sent out a form, also obtained independently by TPM (posted below), that it had already updated for correcting judgments of sentences on the basis of the court’s new ruling.
However, according to Flottman, a long-term fix to the criminal code is already in place, albeit unintentionally. In 2014, the Missouri legislature took on a major rewrite of its criminal code that incidentally stripped the language at issue, she said. Thus, on Jan. 1, 2017, when the new criminal law goes into effect, those types of stealing will be felonies again.
“Nobody knew about this or thought about it before, so it is kind of coincidental,” Flottman said. “But the problematic language is not in the new statute, so it does have an end.”
One law professor was unimpressed by the decision. Frank Bowman, a professor of criminal law at the University Missouri School of Law, said the court’s reasoning was wrong in its understanding of the word “element.”
“An element has a well-understood definition,” Bowman said. “I suppose the Missouri Supreme Court could say, ‘That’s fine for the federal Constitution but we define elements differently here in Missouri.’ I think this is a weak argument.”
Corrected: This story has been updated to correct the section number of the criminal code that was at issue in the court’s opinion.
Read the ruling and the form below: