State v. Fernow
2010 Mo. App. LEXIS 1517
Mo. Ct. App.2010Background
- Respondent Dustin Fernow pled guilty to burglary on June 4, 2007 and was placed on probation.
- Probation violation admitted February 4, 2008; probation revocation and a seven-year sentence with suspended execution, released on probation.
- On April 6, 2009, probation revocation hearing was called; Respondent failed to appear; a capias issued; he later ran from the courtroom and was recaptured nearby.
- Respondent was charged by information with escape from custody under §575.200.
- Trial court dismissed the information for failure to charge an offense; State hiredied appeal; Eastern District affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the information properly charge escape from custody under §575.200? | State | Fernow | No; information insufficient to charge escape from custody via probation-related custody. |
Key Cases Cited
- State v. Murphy, 787 S.W.2d 794 (Mo.App. E.D. 1990) (information insufficient when arrest was for possible probation violation not for underlying crime)
- State v. Sapp, 55 S.W.3d 382 (Mo.App. W.D. 2001) (probation-related rearrest does not convert to crime charged; hindrance statute not applicable)
- State v. Haynes, 17 S.W.3d 617 (Mo.App. W.D. 2000) (indictment must allege essential elements with reasonable certainty)
- State v. Brantley, 353 S.W.2d 793 (Mo. 1962) (violation of probation is not a criminal offense; probation revocation is civil)
- State v. Kline, 717 S.W.2d 849 (Mo.App. E.D. 1986) (test for sufficiency of information focuses on essential elements of offense)