State v. TORELLO, 2011 Mo. App. LEXIS 440

Defendant charged as a persistent misdemeanor offender under §558.016 based on two prior class A misdemeanors: resisting arrest and assault of a law enforcement officer.
The prior offenses occurred within six minutes of each other at the same address and involved the same officer.
Exhibit 1 and the judgments of conviction were admitted to prove prior offenses; the trial court treated the offenses as separate under the plain meaning of §558.016.1.
The jury found Defendant guilty of felonious restraint, attempted forcible rape, and armed criminal action on October 29, 2009; the court sentenced him to 32 years on December 11, 2009.
Defendant argued these two prior misdemeanors were part of a single continuous episode and thus could not support a separate persistent-offender status.
The appellate court ultimately held the State failed to prove the prior offenses were committed at different times, reversed the persistent-offender finding, and remanded for jury sentencing while affirming the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Torello was properly found to be a persistent misdemeanor offender under §558.016.5	State argued two offenses were separate	Torello contends offenses were a single episode	Conviction affirmed; remanded for jury sentencing due to erroneous persistent-offender finding

State v. Rose, 169 S.W.3d 132 (Mo.App. E.D.2005) (standard of review for rulings of law; persistence analysis referenced)
State v. Sanchez, 186 S.W.3d 260 (Mo. banc 2006) (two felonies not necessarily two separate times; continuous conduct analysis for persistent offenders)
State v. Darden, 263 S.W.3d 760 (Mo.App. W.D.2008) (remand for jury sentencing when persistent-offender finding is unsupported by facts)
State v. Chapman, 167 S.W.3d 759 (Mo.App. E.D.2005) (remanding for jury sentencing when error limits sentencing authority to judge)