State v. Quigley

829 S.W.2d 117 | Mo. Ct. App. | 1992

MONTGOMERY, Judge.

After a non-jury trial, Defendant was found guilty of “Driving While Revoked.” On appeal, Defendant only attacks the sufficiency of the information. The State has filed no brief in opposition.

Defendant’s point relied on states:

The trial court erred in rendering a judgment of conviction against the defendant because the information seeking to charge the defendant with a crime was insufficient and failed to charge the essential elements of a crime, and therefore, the court was without jurisdiction to render its judgment....

The information is reproduced in the record in the following form:

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As can be seen, the State attempted to charge Defendant with a violation of § 302.321, RSMo Cum.Supp.1991, which reads, in part:

Any person whose license and driving privilege as a resident or nonresident has been canceled, suspended, or revoked under the provisions of sections 302.010 to 302.340, sections 302.500 to 302.540, section 544.046, RSMo, or under the provisions of chapter 577, RSMo, and who drives any motor vehicle upon the highways of this state while such license and privilege is canceled, suspended or revoked and before an official reinstatement notice or termination notice is issued by the director, is guilty of a class A misdemeanor....

The test of sufficiency of an information is whether it contains all essential elements of the offense as set out in the statute and clearly apprises the defendant of facts constituting the offense. State v. Gilmore, 650 S.W.2d 627, 628 (Mo. banc 1983); State v. Powell, 717 S.W.2d 548, 549 (Mo.App.1986). See Rule 23.01(b)(2), Missouri Rules of Court (1990).

In State v. Horst, 729 S.W.2d 30, 31 (Mo.App.1987), it was held that a culpable mental state is an essential element of an offense under § 302.321.¹ See MAI-CR 3d 332.48. Obviously, the information here contained no allegation of Defendant’s mental state. Such omission is fatal.

Citing § 302.321 in the information does not cure the failure to state facts constituting elements of the offense. Gilmore at 629. Because the information omits the essential element of a culpable mental state, other deficiencies need not be discussed.

The judgment is reversed and remanded with the trial court ordered to dismiss the cause.

FLANIGAN, C.J., and SHRUM, P.J., concur.

1 . The Horst opinion notes § 302.321 does not specifically mention a culpable mental state. However, § 562.021.2 supplies the necessity of a culpable mental state as an essential element of a § 302.321 offense. See State v. Counts, 783 S.W.2d 181, 182 (Mo.App.1990).