Lead Opinion
This Court holds article I, section 13’s ban on the passage of any law retrospective in its operation does not apply to criminal laws. Section 571.070.1(1)
Factual and Procedural Background
The facts are undisputed. The State charged Honeycutt as a prior and persistent offender with two counts of stealing a firearm in violation of § 570.030 and one count of unlawful possession of a firearm in violation of § 571.070.1(1). Section 571.070.1(1) provides that a person commits the crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and that person has been convicted of any felony under the laws of this state. The third count in the indictment alleges that between November 22, 2010, and March 31, 2011, Honeycutt knowingly possessed a shotgun and that he had been convicted of felony possession of a controlled substance in September 2002.
Honeycutt filed a motion to dismiss the indictment’s third count, challenging the constitutional validity of § 571.070 as applied to him. Honeycutt alleged that, when he was convicted of possession of a controlled substance, that conviction did not prohibit him from owning a firearm under the version of § 571.070 in effect at that time. Section 571.070 in effect at the time made it a crime for persons convicted of a “dangerous felony” to possess a concealable firearm.
The legislature amended § 571.070 in 2008 to make it a crime for a person convicted of any felony to possess any firearm.
The circuit court sustained Honey-cutt’s motion to dismiss the third count, finding § 571.070 unconstitutional as applied to Honeycutt. The State appeals. The circuit court’s judgment granting Ho-neycutt’s motion to dismiss the third count on constitutional grounds is a final judgment from which the State may appeal. State v. Brown,
Standard of Review
Whether a statute is constitutional is an issue of law that this Court reviews de novo. State v. Vaughn,
The Prohibition Against Any Law Retrospective in its Operation Does Not Apply to Criminal Laws
The United States Constitution
To enforce this constitutional limitation, the Court must first decide what is meant by law “retrospective in its operation.” Honeycutt argues that the phrase should be given its plain meaning and applied in the broadest sense, affecting — and potentially invalidating — both criminal and civil statutes. The State argues that the phrase had a technical legal meaning when adopted that limited its reach only to statutes affecting civil rights and remedies. Therefore, the State argues that § 571.070 cannot be a law “retrospective in its operation” because it is a criminal law. After reviewing the structure of article I, section 13, the debates of this State’s constitutional conventions, the historical legal definition of the phrase, and the relevant authorities from Missouri and other jurisdictions, this Court holds that the constitutional prohibition against enacting a law “retrospective in its operation” applies only to laws affecting civil rights and remedies and was never intended to apply to criminal statutes.
This Court’s primary goal in interpreting Missouri’s constitution is to
Article I, section 13 clearly contains four separate provisions prohibiting the enactment of: (1) ex post facto laws; (2) laws impairing the obligation of contracts; (3) laws retrospective in their operation, or; (4) the making of any irrevocable grant of special privileges or immunities. Ho-neycutt argues that “retrospective” should be given its plain, literal meaning. But to read “retrospective” in the manner Honey-cutt urges would swallow the ex post facto clause of article I, section 13, which applies solely to criminal laws. If the prohibition against any law “retrospective in its operation” is also read to apply to criminal laws, then the ex post facto clause of article I, section 13 would be mere surplusage. This Court is not inclined to give the provision such a meaning. Instead, the retrospective laws clause should be given a meaning separate and apart from the ex post facto provision. This is achieved by recognizing that both the phrase “ex post facto” and the prohibition against any retrospective law had established technical legal meanings when that language was added to our Constitution.
The debates of the constitutional convention of 1875 support this conclusion. During the debate, one delegate proposed a general limitation on the passage of retrospective laws, which he argued would curb the powers of the state and encompass the prohibition against ex post facto laws contained in the federal constitution. Debates of the Missouri Constitutional Convention 1875, vol. II at 370 (Isidor Loeb & Floyd C. Shoemaker, eds., State Historical Soc’y of Mo., 1938). This delegate argued vehemently that the general “prohibition to pass a retrospective act without qualification necessarily carries with it the prohibition to pass a retrospective criminal law; that is to say an ex post facto law[,]” as well as the prohibition to pass a law that impaired the obligation of a contract or a law that defeated a vested civil right or remedy. Id. at 405-10. This
While this delegate attempted to limit the language of this constitutional provision to a blanket prohibition against the passage of all retrospective laws, other delegates wanted to expand the language of the provision by defining the term “retrospective.” One delegate proposed that the provision include language that a retrospective law was one that impaired any vested right, created a new obligation, or attached a new disability. Id,, at 376. Yet another delegate wanted to limit the legislature’s authority to pass retrospective laws that would be curative or confirmatory in nature. Id. at 398.
All of these proposals to amend, redefine or clarify were rejected, and the delegates voted to retain the same language used by the drafters of the 1865 Constitution. These rejections indicate that the drafters understood the prohibition against laws “retrospective in their operation” already had an accepted technical legal meaning. The established understanding of the term retrospective was made particularly clear by one of the delegates of the convention. That delegate stated: “A retrospective law, as is well known to every lawyer on this floor.... It means the same thing in respect to civil affairs that an ex post facto law does in respect to criminal matters.” Id. at 382. Adding the definition to the provision was unnecessary because its meaning was already established and eliminating other phrases ran the risk of losing protections the citizens of Missouri already enjoyed.
This Court’s interpretation of article I, section 13 just two years after the voters adopted the 1875 constitution confirms this conclusion. Ex parte Bethurum confronted the question of whether the constitution’s prohibition against laws retrospective in their operation applied to criminal laws. The Court expressly held that a retrospective law “is one which relates exclusively to civil rights and remedies.”
Bethurum began the analysis by recognizing that “[t]he terms ex post facto and retrospective, as employed in statutes and constitutions, had acquired a definite, legal meaning, long before the adoption of our constitution.” Id. at 548. This Court rejected the ex post facto challenge on the grounds that the law did not meet the test for such challenges set out by the United States Supreme Court in Calder v. Bull,
A “law retrospective in its operation,” as the phrase is employed in our bill of rights, is one which relates to civil rights, and proceedings in civil cases. The inhibition as to retrospective laws, in regard to criminal transactions, was full and complete in the inhibition against the passage of ex post facto laws, but as there was nothing in the federal constitution to prohibit the Legislature from enacting retrospective laws, and doubts have been expressed as to the power of the Legislature to pass such laws, when the State constitution did not forbid it, that clause was inserted in our constitution to make certain what was, before, in some doubt, and is to be found in the constitutions of several other states, while others do not contain any such provision. A retrospective law, as the phrase is employed in our constitution, is one which relates exclusively to civil rights and remedies.
Id. at 550 (emphasis added). This Court noted that the constitution’s use of both the phrase “ex post facto” and the term “retrospective” indicated that each must have a meaning distinct from the other. Id. at 552. Giving “retrospective” its literal or dictionary meaning also would encompass “ex post facto” laws. This would “attribute to the members of the [constitutional] convention ignorance of the meaning of the words employed by them, which we are not inclined to credit.” Id. Accordingly, Bethurum holds that “there can be no doubt that the phrase ‘law retrospective in its operation,’ as used in the bill of rights, has no application to crimes and punishments, or criminal procedure, and [the statute at issue] is neither an ex post facto law nor a law retrospective in its operation.”
as used in our bill of rights, and as generally used in a legal sense, is a technical term, not to be understood in a literal sense, but one that must receive, and has received, a legal interpretation .... So retrospective laws are technically held to relate to civil causes only, and there is a farther [sic] limitation here — it is only such as affect vested rights that are technically retrospective; while all laws affecting the remedy, however retrospective they may be in the literal sense of that word, are not held to be retrospective according to the legal interpretation of that term.
Decided shortly after Bethurum, in Denver, S.P. & P.R. Co. v. Woodward, the Colorado Supreme Court construed their constitutional provision, “That no ex post facto law, nor law impairing the obligation of contracts or retrospective in its operation ... shall be passed by the general assembly.” Woodward,
Bethurum ’s holding — that the term retrospective had a settled technical legal meaning before its inclusion in Missouri’s constitution — finds further support in early legal scholarship. In Bethurum this Court specifically stated, “The terms ex post facto and retrospective, as employed in statutes and constitutions, had acquired
As early as 1798, the Supreme Court of the United States ascribed distinct, technical legal meanings to the phrases “ex post facto laws” and “retrospective laws.” In the seminal case of Calder v. Bull,
Recognizing the general injustice inherent in many retrospective laws coupled with the absence of any explicit provision in the federal constitution prohibiting their enactment, some states adopted state constitutional provisions to ensure state legislatures could not pass retrospective civil laws. Sedgwick, supra, at 166. When Missouri adopted its first constitution in 1820 it included, in article XIII, section 17, a provision stating “[t]hat no ex-post fact law, nor law impairing the obligation of contracts, or retrospective in its operation, can be passed, nor can the person of a debtor be imprisoned for debt after he shall have surrendered his property for the benefit of his creditors in such manner as may be prescribed by law.” Every constitution of this state since has included a similar provision.
Until very recently, every decision of this Court involving the prohibition against laws retrospective in their operation applied that provision solely to laws involving civil rights and remedies. In Hope Mut. Ins. Co. v. Flynn, one of this Court’s seminal cases interpreting this provision, this
In Barton County v. Walser, this Court reaffirmed the definition of retrospective laws in Hope Mutual Insurance.
In City of St. Louis ex rel. Creamer v. Clemens, this Court invalidated a city ordinance that sought to impose a new tax assessment for work previously performed by a city contractor.
More recently, in State ex rel. Koster v. Olive, this Court held that a civil law requiring dam owners to obtain permits for their dams was not retrospective in operation.
In Klotz v. St. Anthony’s Medical Center, this Court invalidated a civil law that established a new cap on non-economic damages as applied to a couple whose claim had accrued prior to the enactment of the law.
Furthermore, Missouri courts have — on multiple occasions — expressly reaffirmed the proposition that the retrospective clause of article I, section 13 does not apply to criminal laws. Lincoln Credit Co. v. Peach,
In the face of the long-standing technical legal meaning of these terms and Bethu-rum ’s necessary and express holding, Ho-neycutt argues that this Court implicitly overruled Bethurmn in two recent cases: R.L. v. Dep’t of Corrections,
Generally, this Court presumes, absent a contrary showing, that an opinion of this Court has not been overruled sub silentio. See Badahman v. Catering St. Louis,
Importantly, “[t]he maxim of stare decisis applies only to decisions on points arising and decided in causes” and does not extend to mere implications from issues actually decided. Broadwater v. Wabash R. Co.,
In addition to the usual presumption against assuming a case was overruled sub silentio, a careful review of these cases demonstrates that this Court — without consideration — presumed the laws invalidated in R.L. and F.R. to be civil in nature. In R.L., this Court stated, “The constitutional bar on retrospective civil laws has been a part of Missouri law since this State adopted its first constitution in 1820.”
Similarly, the opinion in F.R. (concerning residency requirements and various Halloween restrictions) begins with the statement, “These two cases are simply cases that can be resolved by applying article I, section 13 in the same way as it was applied in Doe v. Phillips and R.L.”
While this Court is not critical of counsel for the defendant making the argument that R.L. and F.R. reversed Bethwmm sub silentio, a fair reading of R.L. and F.R. demonstrates they do not hold that article I, section 13’s prohibition against laws retrospective in their operation applies to criminal laws. Neither case made an express holding to that effect, and the language used and authorities cited in each case demonstrate that the Court presumed the particular laws invalidated were civil laws without consideration or analysis of the issue.
This Court reaffirms the long-standing precedent that the separate and distinct phrases of article I, section 13 had technical legal meanings at the time they were adopted and still do. As such, with the issue fully briefed and argued, this Court now holds the phrase “ex post facto law” applies exclusively to criminal laws and the phrase law “retrospective in its operation” does not apply to criminal laws.
Though the discussion up to this point has gone to great length to highlight an important distinction between the “ex post facto” and the “retrospective law” provisions of article I, section 13, that is just the starting point of the constitutional analysis. Under both provisions, it is essential that the analysis begins with a determination of whether the law under examination is civil or criminal. If the law relates to civil rights or remedies, this Court then must determine whether the law is invalid because it is retrospective in its operation. On the other hand, if a criminal law is at issue, then article I, section 13⅛ prohibition against ex post fac-to laws is applicable.
In order to determine which provision of article I, section 13 determines the law’s validity, this Court applies the two-part test utilized by the United States Supreme Court in Smith v. Doe,
In Smith, the United States Supreme Court found that an Alaska version of “Megan’s Law,” which required sex offenders to register with the State, was a civil statute and was not subject to the ex post facto prohibitions of the United States Constitution. Smith,
We must “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is “ ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil’ ”
Id. (citations omitted). “Whether a statutory scheme is civil or criminal ‘is first of all a question of statutory construction.’ ” Id.
. “The courts ‘must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.’ ” Id. at 92-93,
If a statute is determined to create a civil regulatory scheme, the Court must then examine whether the civil scheme was “so punitive either in purpose or effect as to negate [the State’s] intention to deem it civil.” Id. at 92, 97,
Following Smith, this Court applied the two-part analysis to Missouri’s sex offender registration statutes in the ex post facto context. In R.W.,
To avoid any future confusion, the courts of this State, when faced with a state constitutional challenge based on article I, section 13, should employ the two-part analysis utilized in Smith and R.W. to determine the character of the particular law as the first step in analyzing whether a law violates the either “ex post facto” provision or the “retrospective laws” provision of article I, section 13.
With these concepts in mind, this Court now turns to the two-part test to determine if § 571.070.1(1) affects civil rights and remedies or if it relates to crimes or criminal punishment. The first part of the test requires the Court to “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” Smith,
Section 571.070 provides:
1. A person commits the crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and:
(1) Such person has been convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony; or
(2) Such person is a fugitive from justice, is habitually in an intoxicated or drugged condition, or is currently adjudged mentally incompetent.
2. Unlawful possession of a firearm is a class C felony.
3. The provisions of subdivision (1) of subsection 1 of this section shall not apply to the possession of an antique firearm.
Section 571.070.1(1) appears on its face to be a criminal statute. The statute uses the language of a criminal statute, providing a requisite mental state — “knowingly” — and a penalty for violation of the statute — “class C felony.” Section 571.070 is part of the criminal code. Section 556.011, RSMo 2000. And it is written in the style of all other provisions of the criminal code.
Moreover, “[o]ther formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislature’s intent.” Id. at 94,
Here, the statute is clearly of the variety that has been regarded in our history and traditions as punishment. It seeks to punish anyone who previously has been convicted of a felony and who is in possession of any firearm and is designed specifically to criminalize that conduct.
Turning to the second factor, § 571.070 imposes a direct and affirmative restraint on a certain class of defendants. It prohibits anyone who has been convicted of a felony from knowingly possessing a firearm.
Turning to the third factor, § 571.070 also promotes the traditional aims of punishment. “Two traditional aims of punishment are deterrence of future crimes and retribution for past crimes.” R.W.,
Turning to the fourth and fifth factors, no non-punitive purpose has been advanced by any party. Therefore, these factors need not be considered.
Because the proper analysis demonstrates that § 571.070.1(1) is a criminal statute, article I, section 13’s prohibition against laws retrospective in their operation does not apply. This Court recently held that § 571.070 does not violate the ex post facto law provision of article I, section 13 of the Missouri Constitution in State v. Harris,
Conclusion
This Court long ago concluded that the phrases “ex post facto” and law “retrospective in its operation” as employed in article I, section 13 have distinct, technical, legal meanings. Today, this Court reaffirms that conclusion and holds that the prohibition of laws retrospective in their operation does not apply to criminal laws. Because § 571.070 is a criminal statute, the circuit court erred in dismissing the third count of the indictment against Ho-neycutt on the grounds that the statute was unconstitutionally retrospective as applied to Honeycutt. The circuit court’s judgment is reversed, and the case is remanded.
Notes
. All statutory references are to RSMo Supp. 2010 unless otherwise indicated.
. Section 571.070.1(1), RSMo 2000 stated, "A person commits the crime of unlawful possession of a concealable firearm if he [or she] has any concealable firearm in his [or her] possession and [he or she] has pled guilty to or has been convicted of a dangerous felony, as defined in section 556.061, RSMo_”
. Section 571.070.1(1), RSMo Supp.2010 states, "A person commits the crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and [s]uch person has been convicted of a felony under the laws of this state....”
. The circuit court's dismissal without prejudice of Honeycutt’s indictment based on its unconstitutional application of § 571.010 had the practical effect of terminating the litigation and constituted a final and appealable judgment. State v. Davis,
. U.S. Const, art. I, sec. 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed.”); U.S. Const, art. I, sec. 10, cl. 1 ("No state shall ... pass any ... ex post facto law....”)
. See Colo. Const, art. II, sec. 11; Ga. Const, art. I, sec. 1, para. X; N.H. Const. Part I, art. 23; Ohio Const, art. II, sec. 28; Tenn. Const, art. I, sec. 20; and Tex. Const, art. I, sec. 16.
.See Mo. Const, art. XIII, sec. 17 (1820) (“That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, can be passed, nor can the person of a debtor be imprisoned for debt after he shall have surrendered his property for the benefit of his creditors in such manner as may be prescribed by law.”); Mo. Const, art. I, sec. 28 (1865) ("That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, can be passed.”); Mo. Const, art. II, sec. 15 (1875) ("That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be passed by the General Assembly.”).
. The scope of the prohibition against laws retrospective in their operation as compared with the prohibition against laws that impair contract obligations is not before the Court in this case. But it is sufficient to point out that, just as the United States Constitution prohibited ex post facto laws, it also prohibited laws that impaired contract obligations. There is no doubt that to give meaning to the prohibition on laws retrospective in operation, it necessarily applied to civil rights and remedies in addition to contract rights.
. Specifically, the Court stated that the statute at issue:
*417 did not make an act criminal which was innocent before its passage; it did not make the crime, of which defendant was found guilty, greater than when he committed it; it did not change the punishment and inflict greater punishment than the law annexed to the crime when he committed it; nor did it alter the legal rules of evidence, and make less or different testimony than the law required when he committed the offense, sufficient to convict him.
Bethurum,
. Honeycutt asserts that this statement is dicta because the Court also stated, "It is a less difficult task to determine whether the [statute] is a retrospective law, or not, than to lay down a rule aptly and exactly to govern all cases, and we shall make no such attempt.” Bethurum,
. Though not cited in Bethurum, this Court had implied that the retrospective clause was understood to have no application to criminal laws twelve years earlier in State v. Garesche,
. The concurring opinion, questions the authority on which Bethurum relies. Contrary to the concurring opinion’s assertion that “Bethurum simply assumed that the ex post facto ban applied to criminal laws and so the retrospective law ban must apply only to civil laws,” the Bethurum Court based its opinion on the definition of the terms at issue as they were understood at the time, the language of the constitution, the drafters' motives for including the clause, and the decisions of other state high courts interpreting similar provisions. The Bethurum Court undoubtedly was also presented with the relevant caselaw of the time. Notably, in the 57 years between the adoption of the original retrospective clause in the 1820 constitution and the decision of Bethurum in 1877 not one opinion of this Court applied the retrospective clause to a criminal law. On the other hand, the Court used the provision on numerous occasions to invalidate laws relating to civil rights and remedies. Moreover, this Court decided Hope Mut. Ins. Co. v. Flynn,
. Bethurum looked to two other cases from outside Missouri, another from New Hampshire and one from Texas. Both cases held that the term “retrospective laws” — or some version thereof — could not be taken to have its literal meaning. Woart v. Winnick,
. Sedgwick’s treatise is cited as authoritative in many of this Court’s opinions throughout the mid-to late-1800s. E.g., State ex rel. McNamee v. Stobie,
. Violation of the residence restriction was a class D felony for the first violation and a class B felony for any subsequent violation. Violation of the Halloween restrictions was a class A misdemeanor.
. No case should be reversed unless the legally dispositive issue is necessary to the resolution of the pending case. To do otherwise could result in an under-informed or under analyzed holding. Very recently, in State v. Davis,
. Although the test is the same, it is important to point out a distinction when using this test to determine whether a law solely violates the United States Constitutional prohibition against ex post facto laws. In the federal analysis, if a law is determined to be civil, the inquiry ends because the federal constitution does not contain an express prohibition against "retrospective laws.”
Dissenting Opinion
I write separately to note that I disagree with the majority’s suggestion that the traditionally recognized meaning of the term “retrospective in operation” in article I, section 13 of Missouri’s constitution necessarily was limited to civil matters. While Ex parte Bethurum,
Hope cited to Theodore Sedgwick’s 1857 A Treatise on the Rules which Govern the Interpretation and Application of Statutory and Constitutional Law as the source of this definition, but an even earlier reference can be found in the 1814 Justice Story opinion Society for the Propagation of the Gospel v. Wheeler,
But this begs the question whether the prohibition against retrospective laws applies to retrospective criminal laws, for nothing in the definition of “retrospective” as set out in Hope or by Judge Story or Sedgwick explains why this settled “technical” meaning is limited to civil laws. Indeed, Justice Story says “every statute” that takes away rights or imposes new obligations or disabilities is retrospective, not “every civil statute.” Similarly, James Kent’s Commentaries on American Law, cited by Garesche, supra, as authority for the definition of “retrospective laws,” states:
Ex post facto laws relate to penal and criminal proceedings, which impose punishments or forfeitures, and not to civil proceedings, which affect private rights retrospectively. Retrospective laws and state laws, divesting vested rights, unless ex post facto, or impairing the obligation of contracts, do not fall within the prohibition contained in the Constitution of the United States, however repugnant they may be to the principles of sound legislation.
1 James Kent, Commentaries on American Law Jp51 (8th ed. 185U) (emphasis added). This suggests that criminal laws can be retrospective yet not ex post facto.
Similarly, the authorities to which Story refers do not state that criminal laws that are not within the meaning of ex post facto cannot be otherwise retrospective. The principal authorities cited are the 1798 Supreme Court opinion Calder v. Bull,
Of course, it is true that most retrospective criminal laws already are prohibited by the ban on ex post facto laws. This may be the real reason why Bethurum simply assumed that the ex post facto ban applied to criminal laws and so the retrospective law ban must apply only to civil laws — Bethurum indicated that the framers of the Constitution surely would have wanted to avoid duplication. The supreme courts of the other states with similar provisions also have stated that it applies to civil cases only, albeit again without saying how the term acquired that limitation or what authority supports it.
Yet, here, the majority says that the gun law at issue here is both retrospective and criminal but does not fall within the ban on ex post facto laws. This disproves its own premise and that on which Bethurum and similar authorities were based, for it is a criminal law not covered by the ex post facto ban. In any event, the majority’s argument proves too much to the extent it says that interpreting the ban on retrospective laws to apply only to retroactive civil laws avoids redundancy, for the ban on retrospective civil laws clearly is redundant with the ban on laws impairing contracts. Such a ban on impairment of contracts has been a part of every Missouri constitution.
I nonetheless concur that this Court should interpret the term “retrospective laws” to apply only to civil laws or laws with a civil, regulatory effect. I do so because, even if the source of the limitation of the application of the retrospective laws limitation is unclear, the fact is that these are the only kinds of cases to which it has been applied. This may simply be because the prohibition on ex post facto laws is so broad that there just were no criminal cases not encompassed within the concept of ex post facto laws until the legislature began to adopt laws regulating and punishing the conduct of sex offenders.
Because of its consistent application only to civil cases for the nearly 200 years since this State’s first constitution was adopted in 1820, I agree the term “retrospective in operation” during that period acquired a meaning that limits it to the civil context— what the state and the majority call its “technical meaning.”
I also note that this limitation of “retrospective laws” to civil matters is consistent with this Court’s application of the ban on retrospective laws in Doe v. Phillips,
In contrast, here, Mr. Honeycutt was convicted of carrying a gun in violation of an admittedly solely criminal law that prohibits persons who previously were convicted of particular crimes from carrying firearms. The law is not ex post facto, as it does not criminalize his conduct based solely on the existence of his prior conviction but rather does so based on his current and prospective carrying of a firearm. It therefore was his post-conviction conduct that resulted in his conviction. Accordingly, I concur.
. See, e.g., People v. Dist. Court,