            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT

STATE OF MISSOURI,                              )
                                                )
                                  Appellant,    )
                                                )   WD78695
v.                                              )
                                                )   OPINION FILED:
                                                )   August 16, 2016
JOHN THOMAS LARSEN,                             )
                                                )
                                Respondent.     )


                Appeal from the Circuit Court of Jackson County, Missouri
                          The Honorable Jeffrey C. Keal, Judge

              Before Special Division: Zel M. Fischer, Special Judge, Presiding,
                   Mark D. Pfeiffer, Chief Judge, and Gary D. Witt, Judge

       John T. Larsen (“Larsen”) was charged with the class D felony of driving while

intoxicated (“DWI”) as a persistent offender after he had previously pled guilty to a municipal

DWI ordinance violation which arose from the same incident. The Circuit Court of Jackson

County, Missouri (“circuit court”), dismissed the felony DWI charge on double jeopardy grounds

and the State has appealed. We affirm.

                            Factual and Procedural Background

       On June 28, 2014, John Larsen was arrested for DWI in Greenwood, Missouri. He was

charged with violating a municipal DWI ordinance in the City of Greenwood Municipal Court
and pleaded guilty to that charge on October 7, 2014. The judge presiding in the Greenwood

municipal division of the circuit court entered judgment against Larsen the same day.

         On October 23, 2014, the Jackson County Prosecutor sought to prosecute Larsen for the

class D felony of driving while intoxicated as a persistent offender,1 said charge arising from the

same incident as the municipal ordinance violation and resulting October 7, 2014 judgment.

         Larsen’s attorney filed a motion to dismiss the felony DWI charge, asserting double

jeopardy protection. See State v. M.L.S., 275 S.W.3d 293, 296 (Mo. App. W.D. 2008) (“The

Double Jeopardy Clause prevents a criminal defendant from being subjected to multiple

punishments for the same offense.” (internal quotation omitted)). The circuit court agreed and

dismissed the case, stating:

         [Larsen] has already pleaded guilty in the City of Greenwood Municipal Court for
         driving while intoxicated stemming from events on June 28, 2014. As any new
         charge related to these same events would violate [Larsen’s] protection from
         “Double Jeopardy” afforded to him by the 5th and 14th Amendments of the United
         States Constitution and Article 1 §19 of the Missouri Constitution, the case
         brought by the State of Missouri (1416-CR03682) against [Larsen] is hereby
         DISMISSED.

         The State has filed this timely appeal.

                                              Standard of Review

         “Whether a defendant is afforded the protections of the Double Jeopardy Clause is a

question of law, which we review de novo.” M.L.S., 275 S.W.3d at 296.

                                                      Analysis

         In the State’s point on appeal, it argues that the Greenwood municipal division of the

circuit court lacked subject matter jurisdiction2 and its judgment is a nullity; thus, the State

argues that the present felony DWI charge is not barred under principles of double jeopardy

         1
          There is no dispute that Larsen had, in fact, previously been convicted, found guilty, or pled guilty to two
or more previous intoxication-related traffic offenses.
        2
          The State does not contest that said municipal division of the circuit court possessed personal jurisdiction.


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analysis. However, the State’s subject matter jurisdiction argument is nothing more than a

“jurisdictional competence” argument that our Missouri Supreme Court has previously rejected.

See J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 254 (Mo. banc 2009).

       In Webb, our Supreme Court succinctly explained that the subject matter jurisdiction of

Missouri’s courts is dictated by article V of the Missouri Constitution. Id. at 253. For example,

in Webb, the court in question was a circuit court; thus, our Supreme Court evaluated that judge’s

subject matter jurisdiction under article V, section 14 (the provision governing circuit judge

jurisdiction). Id. at 253-54. In footnote 7, the Supreme Court referred to the subject matter

jurisdiction of associate circuit court judges under article V, section 17 (the provision governing

associate circuit judge jurisdiction). Id. at 254 n.7. Here, the question presented is: What

subject matter jurisdiction does a judge have in the municipal division of the circuit court? The

answer is found in article V, section 23: “A municipal judge shall hear and determine violations

of municipal ordinances in one or more municipalities.”

       Following the dictate of Webb, then, the only question that need be decided here is

whether the judge who was presiding in the Greenwood municipal division was hearing and

determining a violation of a municipal ordinance when the court entered judgment against

Larsen on October 7, 2014. Clearly, that is precisely what happened: as a result of the June 28,

2014 drunk driving incident, Larsen was charged with violating a Greenwood municipal

ordinance prohibiting DWI. A judge from the Greenwood municipal division of the circuit court

heard and determined the violation of said municipal ordinance and, accordingly, that judge

possessed subject matter jurisdiction to enter judgment on Larsen’s municipal DWI charge.




                                                3
        What the State is really arguing in this appeal is that section 479.1703 constitutes a

statutory restriction upon the authority of the municipal division of the circuit court to render a

judgment in this particular case. In pre-Webb nomenclature, Missouri’s appellate courts referred

to such an argument as one of “jurisdictional competence.”

        In evaluating the jurisdiction of circuit courts, there are cases that, in dicta,
        purport to recognize a third concept, “jurisdictional competence,” which often is
        confused with subject matter jurisdiction. . . . [T]hese cases generally concern
        situations in which there is no question as to the court’s authority to decide the
        general issue before it, but there is a question whether the issue or parties affected
        by the court’s judgment are properly before it for resolution at that time. . . .
        [T]hese cases do not question the court’s subject matter or personal jurisdiction
        and really go to the court’s authority to render a particular judgment in a
        particular case.

        ....

        [T]here is no constitutional basis for this third jurisdictional concept . . . .
        Elevating statutory restrictions to matters of “jurisdictional competence” erodes
        the constitutional boundary established by article V of the Missouri Constitution,
        and robs the concept of subject matter jurisdiction of the clarity that the
        constitution provides. If “jurisdictional competence” is recognized as a distinct
        concept under which a statute can restrict subject matter jurisdiction, the term
        creates a temptation for litigants to label every statutory restriction on claims for
        relief as a matter of jurisdictional competence. Accordingly, having fully
        considered the potential ill effects of recognizing a separate jurisdictional basis
        called jurisdictional competence, the courts of this state should confine their
        discussions of . . . jurisdiction to constitutionally recognized doctrines of personal
        and subject matter jurisdiction; there is no third category of jurisdiction called
        “jurisdictional competence.”

Webb, 275 S.W.3d at 254 (numerous internal citations and quotations omitted).


        3
            All statutory references are to RSMo 2010, Cum. Supp. 2013 unless otherwise indicated. Section 479.170
provides:

        1. If . . . it shall appear to the judge that the accused ought to be put upon trial for an offense
        against the criminal laws of the state and not cognizable before him as municipal judge, he shall
        immediately stop all further proceedings before him as municipal judge and cause the complaint to
        be made before some associate circuit judge within the county.
        2. For purposes of this section, any offense involving the operation of a motor vehicle in an
        intoxicated condition . . . shall not be cognizable in municipal court, if the defendant has been
        convicted, found guilty, or pled guilty to two or more previous intoxication-related traffic
        offenses . . . .


                                                         4
         Here, the State does not contest that municipal divisions of the circuit courts generally

possess the subject matter jurisdiction to hear and determine municipal ordinance violations as

dictated by article V of the Missouri Constitution. Instead, what the State argues is that there is a

statutory restriction in this case that addresses the municipal division’s authority to render a

judgment in this particular case.4 Hence, this is nothing more than a “jurisdictional competence”

argument—not a subject matter jurisdiction argument—and this argument must fail.5

         The municipal division of the circuit court in this case possessed both personal and

subject matter jurisdiction to hear and determine Larsen’s municipal DWI ordinance violation.

Its judgment is not a nullity. Because a defendant cannot be prosecuted for an offense that

includes within the new charge all of the same elements of a previous offense to which the

defendant pled guilty (which the State concedes in the present case), or of which he was

previously convicted in a municipal division of the circuit court, see State v. Streck, 68 S.W.3d

625, 627 (Mo. App. S.D. 2002), the State is prohibited from charging Larsen with the class D




         4
            The State concedes that section 479.170 does not restrict the subject matter jurisdiction of judges
presiding over municipal divisions of the circuit court that is set forth in article V, § 23 of the Missouri Constitution.
See MO. CONST. art. XII, § 1 (only a constitutional amendment may alter a constitutional provision).
          5
            Even were we to reach the State’s section 479.170 argument, it is clear from the factual and procedural
circumstances of this case that section 479.170 is inapplicable. Though the State attempts to frame subsection 2 of
section 479.170 (see infra n.3) as a stand-alone provision, it clearly is not: its opening phrase confines subsection 2
to application only “for purposes of this section.” Hence, subsection 2 refers to the only other subsection in
section 479.170—subsection 1. However, subsection 1 requires that it must first “appear to the judge” that
subsection 2 factual circumstances exist (i.e., that the defendant has been convicted, found guilty, or pled guilty to
two or more previous intoxication-related traffic offenses) before the transfer requirement of subsection 1 applies.
We are to give language used in a statute its plain and ordinary meaning. See State v. Chambers, 437 S.W.3d 816,
820 (Mo. App. W.D. 2014). We presume the legislature “intended what the statute says, and if the language used is
clear, there is no room for construction beyond the plain meaning of the law.” State v. Sharp, 341 S.W.3d 834, 839
(Mo. App. W.D. 2011). We are not at liberty to add words or requirements by implication where the statute is not
ambiguous. See State v. Simmons, 270 S.W.3d 523, 531 (Mo. App. W.D. 2008).
          Here, the statute is unambiguous and the record fails to demonstrate any evidence showing that it
“appear[ed] to the judge” of the municipal division of the circuit court that circumstances existed “that [Larsen]
ought to be put upon trial for an offense against the criminal laws of the state.” Though there is nothing prohibiting
a court from inquiring about prior convictions prior to accepting a plea agreement and proceeding to sentencing,
there is also nothing obligating a court to do so; likewise, there is no obligation requiring a plea court to, sua sponte,
investigate prior conviction histories of persons appearing before the plea court.


                                                            5
felony of driving while intoxicated as a persistent offender and the circuit court did not err in

dismissing the State’s case on double jeopardy grounds.

                                          Conclusion

       The judgment of the circuit court dismissing the State’s case is affirmed.



                                             Mark D. Pfeiffer, Chief Judge

Zel M. Fischer, Special Judge, and Gary D. Witt, Judge, concur.




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