Missouri Supreme Court Strikes Law for "Felony Stealing" After Legislative Blunder


Just about all theft in Missouri is now a misdemeanor. - PHOTO COURTESY OF FLICKR/KATE SUMBLER
  • Photo courtesy of Flickr/Kate Sumbler
  • Just about all theft in Missouri is now a misdemeanor.

Do you like to steal things? Credit cards and guns? Voter registration lists and wills? What about American flags, live fish raised for commercial sale with a value of $75, or anything else listed as felony theft according to Missouri law? You've probably racked up some felonies then, right?

Wrong. According to a Missouri Supreme Court ruling, a legislative blunder in 2002 rendered that particular piece of Missouri law unusable — and the mistake has thrown thousands of cases into doubt. 

Mary Fox, St. Louis' head public defender, tells Riverfront Times that her office is currently handling about 200 pending cases of felony theft, and all could soon be dropped down to misdemeanors, which is now the only operating punishment for theft in Missouri. Also affected in the city are some 2,000 cases that have already been adjudicated.

"We are trying to identify the cases that we have currently open that would fall into this category," says Fox. "Obviously we’ll advocate for those clients to not face felony charges. We are also looking to see which of our clients may be currently in the Department of Corrections on those charges. It’s going to be a lot of work. " 

Suffice it to say, the court ruling delivered Tuesday has left the state's legal community reeling. 

The decision dealt with a felony theft case – State v. Bazell in which a woman was convicted of stealing a .40-caliber pistol, a .22-caliber rifle, a laptop, a suitcase, jewelry valued at $8,000 and two pairs of tennis shoes. Bazell fought her case all the way up to the state Supreme Court, but the justices weren't interested in her public defender's arguments about double jeopardy or the problems raised about a photo lineup. 

But they did find something else that concerned them — something with major repercussions for many other cases.

"I was attacking this particular conviction on some different grounds," explains Ellen Flottman, the district defender of the Central Appellate Office of the Missouri State Public Defender System. During the oral arguments in April, though, Flottman says the justices became fixated on Missouri's basic definition of felony theft. She was asked to provide a supplemental brief on the issue. 

Ultimately, the justices found a fatal contradiction in a 2002 legislative adjustment to the criminal code. The problem lay between two subparagraphs in the section defining criminal theft, 570.030

The first subparagraph, 570.030.1, provides the basic description: Stealing is appropriating "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.” 

Pretty simple right? Stealing is taking someone else's stuff. 

But the court didn't like what it read two subparagraphs later, in 570.030.3, which states that "any offense in which the value of property or services is an element" can be bumped up to a Class C Felony. 

The court looked at these two paragraphs and called, in effect, bullshit. 

"The definition of stealing in section 570.030.1 is clear and unambiguous," the court wrote in its ruling. (Remember, that part defined "stealing" as the simple act of appropriating someone else's stuff. It didn't say anything about the value of that stuff.)

"The value of the property or services appropriated is not an element of the offense of stealing,” the court noted. "As a result, the enhancement pursuant to section 570.030.3 does not apply to Defendant’s stealing convictions for the theft of the firearms. These offenses must, therefore, be classified as misdemeanors." 

The court's point may sound pedantic, but it's more than petty hair-splitting. The court was saying that when you define a criminal offense, you've got to do all your defining in one place. You can't just add extra elements as if they were condiments on a burger. 

But don't start plotting your theft spree just yet. This bizarre loophole is about to close. A new reform of the state's criminal code will go into effect on January 1, 2017, and the revisions to 570.030 will untangle the problems noted by the court and thus effectively revive felony theft in Missouri. It's only people in the middle of the two changes to the law — those convicted of felony theft after 2002 but before 2017 — who have any hope of reprieve.

As it stands, public defenders across the state are now scrambling to look for past cases where clients fall under those parameters. And the additional workload comes as the state's public defenders struggle with budget cuts and staff shortages.

Even so, Flottman welcomes the new burden. 

"This is what appellate attorneys live for; we love statutory interpretations," she says. Her office has already identified three appeals cases where the defendants should only have been charged with misdemeanor theft instead of felonies. And there's likely many more.

"We feel passionately about our clients, and they are our clients for life," says Flottman. "If they are in prison for something they shouldn’t be, we’re going to try to fix that." 

Follow Danny Wicentowski on Twitter at @D_Towski. E-mail the author at Danny.Wicentowski@RiverfrontTimes.com 

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