12-24-2013 Missouri:
Missouri v Wade (and other consolidated cases)
eAdvocate Note: The essence of this decision is, that Art I Sec 13 of the Missouri Constitution applies only to criminal laws, which 566.150 (A proximity law) is. Apparently there is another decision -which this decision now overturns- which held the above constitutional section applies to BOTH, criminal and civil laws. Yes this is a bit confusing but reread this note.
In this appeal Michael Wade, Jason Reece Peterson, and Edwin Carey each argue that
article I, section 13 of the Missouri Constitution, which prohibits the passage of any law "retrospective in its operation," applies to criminal laws and, therefore, their charges under § 566.150,1 are unconstitutional as applied to them. This Court recently held that the retrospective clause of article I, section 13 does not apply to criminal laws. These cases now require this Court to determine whether § 566.150 is a criminal law.
This Court concludes that § 566.150 is a criminal law. Therefore, the circuit courts erred in dismissing the charges against Peterson and Carey on the grounds that the statute was unconstitutionally retrospective as applied to them, but the circuit court correctly overruled Wade's motion to dismiss. The judgments entered against the State with respect to Peterson and Carey are reversed, and the cases are remanded. The judgment in Wade's case is affirmed.
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State v. Wade
On November 25, 1996, Wade pleaded guilty to statutory sodomy in the first degree, § 566.062, child molestation in the second degree, § 566.068, and sexual abuse in the first degree, § 566.100. Wade was sentenced, pursuant to § 559.115, RSMo 1994, to participate in the Sexual Offender Assessment Unit program. Upon successful completion of the program, the circuit court suspended the remainder of Wade’s sentences and ordered him released on probation for a period of five years. Wade was a registered sex offender and in compliance with sex offender registration requirements.
On August 22, 2011, Wade was arrested at Castlewood State Park for violating § 566.150. Section 566.150 prohibits any individual who has pleaded guilty to, or been convicted of, or been found guilty of various sex offenses from "knowingly be[ing] present in or loiter[ing] within five hundred feet of any real property comprising any public park with playground equipment or a public swimming pool." Wade was charged with knowingly being present within 500 feet of a public park with playground equipment. Wade filed a motion to dismiss the indictment, claiming the statute was unconstitutionally retrospective as applied to him in violation of article I, section 13. The circuit court overruled the motion, and Wade waived his right to a jury trial. After a bench trial, Wade was convicted and sentenced to three years’ imprisonment. The circuit court suspended execution of his sentence and placed Wade on probation for a period of five years. Wade appeals.
State v. Peterson
On January 20, 1998, Peterson was convicted of the offense of indecent behavior with a juvenile in Louisiana. Peterson resides in Missouri and is in compliance with all sex offender registration requirements. On June 17, 2011, a grand jury issued an indictment charging Peterson with the crime of loitering within 500 feet of a public park in violation of § 566.150.
Peterson filed a motion to dismiss the charge against him as unconstitutionally retrospective in violation of article I, section 13. The State responded by arguing the retrospective ban contained in the constitution applied only to civil rights and proceedings, not to criminal proceedings, relying on the holding in Ex parte Bethurum, 66 Mo. 545 (1877), to support its position. The State also argued that if the retrospective ban applied to criminal statutes, the statute did not tread on any of Peterson’s vested rights, nor did it confer any additional duty, obligation, or disability on Peterson to comply with the statute.
The circuit court sustained Peterson’s motion to dismiss the indictment. The circuit court assumed the ban contained in article I, section 13 was not limited to civil statutes and found § 566.150 was an unconstitutionally retrospective law as applied to Peterson. The State appeals.
State v. Carey
On May 7, 1997, Edwin Carey pleaded guilty to the offense of statutory rape in the second degree in violation of § 566.034, RSMo Supp. 1997. Carey is in compliance with all sex offender registration requirements.
In 2010, the State filed an information charging Carey with the offense of loitering within 500 feet of a public park in violation of § 566.150. Carey filed a motion to dismiss the charge against him, alleging that § 566.150 is unconstitutionally retrospective as applied to him because it imposed a new obligation that was not present at the time of his conviction in violation of article I, section 13. Carey's motion alleged that § 566.150 became effective 12 years after his May 1997 guilty plea.
The motion further alleged that laws similar to § 566.150 had been found unconstitutionally retrospective as applied to offenders convicted before the enactment of the law. The State responded to the motion by arguing that article I, section 13's prohibition against laws retrospective in their operation applied only to civil rights and remedies. After a hearing, the circuit court sustained Carey's motion and dismissed the information. The State appeals.
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Conclusion
As recently reaffirmed in Honeycutt, the retrospective clause of article I, section 13 does not apply to criminal laws. Because § 566.150 is a criminal statute, the circuit court erred in dismissing the charges against Peterson and Carey on the ground that the statute was unconstitutionally retrospective as applied to them, but correctly overruled Wade's motion to dismiss. The circuit courts' judgments are reversed, and the cases are remanded with respect to Peterson and Carey. The judgment in Wade's case is affirmed.
Russell, C.J., and Breckenridge, J., concur;
Wilson, J., concurs in separate opinion filed;
Russell, C.J., and Breckenridge, J., concur in opinion of Wilson, J.;
Draper, J., dissents in separate opinion filed;
Stith and Teitelman, JJ., concur in opinion of Draper, J.
Missouri Supreme Court rules against sex offenders
Missouri's Supreme Court on Tuesday sided against three men previously convicted of a sex crime and facing a new criminal charge under a law making it illegal for them to be near certain parks.
The cases are the most recent to focus on a portion of the Missouri Constitution barring retrospective and ex post facto laws. The high court ruled last month the ban on retrospective laws does not apply to criminal statutes. A divided Missouri Supreme Court concluded Tuesday the parks restriction is a criminal law and the retrospective laws prohibition does not apply.
A 2009 Missouri law makes it illegal for those convicted of sexual offenses from knowingly being present or loitering within 500 feet of a public park with playground equipment or a public swimming pool. First-time violators can be charged with a felony and spend up to four years in prison, and repeat offenders could face up to seven years in prison.
In the cases before the high court, each defendant was convicted of a sex offense during the late 1990s. A circuit court dismissed the charge for being in a park against two of the men on the grounds that it was unconstitutionally retrospective when applied to them. The third was appealing his conviction. The high court upheld the conviction and remanded the two other cases.
Supreme Court Judge Zel Fischer wrote in the majority opinion that the park law is part of the criminal code, uses the language of a criminal provision and does not depend upon someone's registration as a sex offender. He said the law also carries a severe punishment.
"The General Assembly intended for this statute to punish felons, who had been convicted of committing specific, enumerated crimes, for engaging in future conduct that the General Assembly determined should be prohibited," Fischer wrote.
The Missouri Supreme Court has seven judges. Three agreed with Fischer's conclusions.
Judge George W. Draper III wrote a dissent joined by two other judges. Draper said he believes the statute against being near parks should be construed as a civil law and that he would find it retrospective as applied to the three sex offenders. Draper said the law is designed to protect the public from harm and derives from the requirement for sex offenders to register, which has been deemed nonpunitive and civil in nature.
..Source.. by CHRIS BLANK
