State of Missouri, Appellant v. Doyle Smith, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: State of Missouri, Appellant v. Doyle Smith, Respondent. Case Number: WD60945 Handdown Date: 11/26/2002 Appeal From: Circuit Court of Buchanan County, Hon. Keith B. Marquart Counsel for Appellant: Philip M. Koppe Counsel for Respondent: Nancy A. McKerrow Opinion Summary: The state appeals from the court's judgment dismissing its criminal information charging Doyle E. Smith with felony criminal nonsupport under section 568.040, RSMo 2000. The court dismissed the charge after finding, in accordance with this court's opinion in State v. French, WD 58860 (2001), that the charge constituted double jeopardy. REVERSED AND REMANDED. Division Four holds: After opinion by this court, the Supreme Court of Missouri ordered the French case transferred and, on July 23, 2002, while the state'scurrent appeal remained pending, it handed down its opinion in State v. French, 79 S.W.3d 896 (Mo. banc 2002). Contrary to this court's French opinion relied upon by the trial court in dismissing the charge, the Supreme Court resolved the double jeopardy issue Smith raised at the trial level in favor of the state. The Court found in French that section 568.040 defines the offense of criminal nonsupport in separate temporal units of prosecution rather than as a continuous course of conduct. As long as the specific periods of the prohibited conduct constitute separate offenses under section 568.040, there is no double jeopardy violation. Smith's misdemeanor conviction was for the months of March and April 1999. The felony charge is for his failure to pay adequate support for six months within the one-year period from August 1, 2000, through July 31, 2001. These are two separate offenses, each of which may be prosecuted. Accordingly, we reverse the trial court's judgment dismissing the information and remand for further proceedings.

Citation: Opinion Author: Victor C. Howard, Judge Opinion Vote: REVERSED AND REMANDED. Ellis, C.J., and Lowenstein, J., concur. Opinion: The State appeals from the trial court's judgment dismissing its criminal information charging Doyle E. Smith with felony criminal nonsupport under section 568.040.(FN1) The trial court dismissed the charge after finding, in accordance with this court's opinion in State v. French, WD 58860 (2001), that the charge constituted double jeopardy. Subsequently, the Missouri Supreme Court ordered the French case transferred and, on July 23, 2002, while the State's current appeal remained pending, it handed down its opinion in State v. French, 79 S.W.3d 896 (Mo. banc 2002). Contrary to this court's French opinion relied upon by the trial court in dismissing the charge, the supreme court resolved the double jeopardy issue raised by Mr. Smith at the trial level in favor of the State. Specifically, the supreme court held that defendant French's failure to provide support was not a continuing course of conduct. Thus, French's two convictions for felony nonsupport for failure to make support payments for six of the twelve months between July 1, 1997, through June 30, 1998, and for a separate six-month period during the separate twelve-month period between January 1, 1998, through December 31, 1998, did not violate the Double Jeopardy Clause of the Fifth Amendment. Accordingly, the State can properly charge Mr. Smith with felony nonsupport under section 568.040 for failure to provide support for six months within the one-year period from August 1, 2000, through July 31, 2001, which is a separate period from the period of the months of March 1, 1999, through April 30, 1999 -- the period for which Mr. Smith was previously convicted of misdemeanor nonsupport under section 568.040. Thus, we reverse the trial court's judgment dismissing the information and remand for further proceedings. Background On April 6, 1995, the Circuit Court of Buchanan County, Missouri, declared Doyle E. Smith the biological father of his minor child, B.E.E., born February 16, 1988, and ordered Mr. Smith to pay $299 per month in child support. On August 24, 1999, Mr. Smith was charged by information with the class A misdemeanor of criminal nonsupport, section 568.040. The information alleged that in the months of March 1, 1999, through April 30, 1999, Mr. Smith knowingly failed to provide, without good cause, adequate food, clothing, lodging or medical attention for his minor child whom he was legally obligated to support. On February 1, 2000, Mr. Smith pleaded guilty to the charge. The court suspended the imposition of Mr. Smith's

sentence and placed him on two years supervised probation, the terms of which required Mr. Smith to make his current court-ordered support payment of $299 a month in addition to a $75 monthly payment toward arrearages. Thereafter, Mr. Smith made sporadic payments toward his child support obligation during 2000 and 2001.(FN2) On November 9, 2001, Mr. Smith was charged by information in the Circuit Court of Buchanan County with felony nonsupport under section 568.040. The information alleged: [T]hat during the six months of November 2000, December 2000, March 2001, April 2001, May 2001 and June 2001, during the twelve month period of August 1, 2000[,] through July 31, 2001, . . . [Mr. Smith] knowingly failed to provide, without good cause, adequate food, clothing, lodging and medical attention for [B.E.E.], [Mr. Smith's] minor child for whom [Mr. Smith] was legally obligated to provide such support. On December 18, 2001, Mr. Smith's counsel moved to dismiss the felony nonsupport charge. Counsel alleged that because Mr. Smith was still on probation and had never been sentenced for the misdemeanor criminal nonsupport offense, the new charge constituted double jeopardy. Relying on this court's opinion in State v. French, WD 58860, counsel argued that nonsupport under section 568.040 "is a crime which involves a continuing course of conduct . . . not expressly provid[ing] that specific periods of nonsupport constitute separate offenses," and, because "a person can not [sic] be convicted twice or punished twice for a continuing course of criminal conduct," the court would lack jurisdiction to enter a judgment in the felony case. The trial court agreed and sustained the motion to dismiss the case with prejudice. This timely appeal by the State follows. Criminal Nonsupport and Double Jeopardy As previously explained, after opinion by this court in State v. French, the Missouri Supreme Court "granted transfer to address the question of whether French's failure to provide support was a continuing course of conduct and whether his two convictions for that continuous conduct violated the Double Jeopardy Clause of the Fifth Amendment." State v. French, 79 S.W.3d 896, 897 (Mo. banc 2002) (citing Mo. Const. art. V, sec. 10). The parties agree that the supreme court's opinion, which is contrary to this court's previous French opinion relied upon by the trial court in dismissing the information, answers the question raised, and reversal is required. Mr. Smith concedes that under the supreme court's opinion in French, he may face prosecution for felony nonsupport despite his earlier plea of guilty to misdemeanor nonsupport, because double jeopardy is not violated when a defendant is prosecuted as he was under section 568.040, which defines the offense of criminal nonsupport in separate temporal units of prosecution rather than as a continuous course of conduct. French, 79 S.W.3d at 899. As explained by our supreme court: the legislative intent to allow multiple punishments [under section 568.040.4] is clear by virtue of the statutory provision for temporal units of prosecution . . . [T]he six month period of nonpayment . . . is . . . an element of the crime, and . . . it establishes a separate unit of prosecution.

Id. Mr. Smith's misdemeanor conviction was for failure to provide support in violation of section 568.040 during the months of March 1, 1999, through April 30, 1999. The felony charge dismissed by the trial court is for his failure to provide support in violation of section 568.040 for six months within the one-year period from August 1, 2000, through July 31, 2001. The charges constitute two separate offenses, each of which may be prosecuted. Id. at 899-900. Accordingly, we reverse the trial court's judgment dismissing the information and remand for further proceedings. Footnotes: FN1.Because of the time frames of the charged conduct, Mr. Smith's misdemeanor nonsupport charge was under section 568.040 RSMo 1994, and his felony nonsupport charge was under section 568.040 RSMo 2000. Thus, references made herein to section 568.040 are under the corresponding version of the statute. However, the distinction is for technical purposes only as no substantive changes were made to the statute. Under both versions, section 568.040.1 charges in relevant part, "[a] parent commits the crime of nonsupport if such parent knowingly fails to provide, without good cause, adequate support which such parent is legally obligated to provide for his child or stepchild who is not otherwise emancipated by operation of law." FN2.Specifically, Mr. Smith made the following payments during the years of 2000 and 2001: 2000:2001: January:$226.75$169.60 February:$ 0$112.57 March:$299$100 April:$299$100 May:$130$ 0 June:$ 0$ 0 July:$ 0$ 0 August:$ 0$ 0 September:$299$299 October:$187$ 0 November:$ 0$299 December:$100$116.45 Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.