ex post facto clause in Missouri

1994In State v. Wings, 867 S.W.2d 607, 609 (Mo.App.1993), this court’s Eastern District held that § 494.480 was a procedural statute and did “not offend the prongs of the ex post facto test[J” The court concluded that the statute could be applied retroactively to any cases on appeal where this issue was raised.

1993See, State v. Wings, 867 S.W.2d 607, 608-609 (Mo.App.1993) (retroactive application of the revision does not constitute an ex post facto violation) (not final pending motion for rehearing and transfer).

2000“It has been held that ‘parole eligibility is part of the punishment for a crime and retroactive changes in eligibility to the disadvantage of a defendant may, in some cases, violate the ex post facto clause.’ ” Nylon, 940 S.W.2d at 5 (quoting State v. Lawhom, 762 S.W.2d 820, 826 (Mo. banc 1988)).

1997It has been held that “parole eligibility is part of the punishment for a crime and retroactive changes in eligibility to the disadvantage of a defendant may, in some cases, violate the ex post facto clause.” State v. Lawhom, 762 S.W.2d 820, 826 (Mo. banc 1988) (citation omitted).

2005The issues Delay raises were squarely decided in State ex rel Cavallaro v. Groose, 908 S.W.2d 133 (Mo. banc 1995), where another inmate claimed a liberty interest in parole based on the application of a repealed parole statute, and also asserted that the Board’s refusal to grant *664 parole violated the ex post facto clause because its decision was based on the new version of the parole statute rather than the one in effect at the time of the offense.

1998Cavallaro v. Groose, 908 S.W.2d 133, 136 [8] (Mo. banc 1995), which explains: “The ex post facto clause is aimed at laws that are retroactive and that either alter the definition of crimes or increase the punishment for criminal acts already committed.” However, emphasizes DYS, the instant case is not one in which Appellant was convicted of, and sentenced for, a crime.

1995See Hillis, 748 S.W.2d at 697-98 .

1988The Court of Appeals, Eastern District, held in State v. Hillis, 748 S.W.2d 694 (Mo.App.1988), that Section 558.019 violates the ex post facto clause when applied to sentence a defendant convicted of robbery and armed criminal action when the crime was committed before the effective date of the statute.

1995State v. Lawson, 876 S.W.2d 770, 777 [15] (Mo.App.1994); State v. Wings, 867 S.W.2d 607, 609 [4] (Mo.App. 1993).

1995State v. Lawson, 876 S.W.2d 770, 777 [15] (Mo.App.1994); State v. Wings, 867 S.W.2d 607, 609 [4] (Mo.App.1993).

2024“If registration statutes were intended to establish a punishment, the inquiry ends and an ex post facto violation is established.” Id.

2013In R.W., 168 S.W.3d 65 , this Court, using the Smith analysis, held that Missouri’s sex offender registration statute was civil and non-punitive and, therefore, did not violate the ex post facto clause.

2017Moreover, the issue in Myers was whether the retroactive application of a restitution statute violated the retrospective clause of the Missouri Constitution, rather than the ex post facto clause — a distinction that is legally significant. 5 In State v. Honeycutt, 421 S.W.3d 410, 423-25 (Mo. banc 2013), the Supreme Court held that the retrospective clause of article I, section 13 of the Missouri Constitution applies only to civil laws and does not apply to criminal laws. “[I]f a criminal law is at issue, then article I, section 13’s prohibition against ex post fac-to laws is applicable.” Id. a

2017Moreover, the issue in Myers was whether the retroactive application of a restitution statute violated the retrospective clause of the Missouri Constitution, rather than the ex post facto clause — a distinction that is legally significant. 5 In State v. Honeycutt, 421 S.W.3d 410, 423-25 (Mo. banc 2013), the Supreme Court held that the retrospective clause of article I, section 13 of the Missouri Constitution applies only to civil laws and does not apply to criminal laws. “[I]f a criminal law is at issue, then article I, section 13’s prohibition against ex post fac-to laws is applicable.” Id. a

2015Because a statutory amendment which alters eligibility for conditional release does not change an inmate’s imposed sentence, the ex post facto clause is not implicated. 8 Id.

2015In Rentschler v. Nixon, 311 S.W.3d 783, 785 (Mo. banc 2010), several inmates complained that an amendment to section 558.011 which removed certain violent felonies from those eligible for conditional release violated the ex post facto clause.

2000“Two elements are necessary for a law to be ex post facto: it must be retrospective, and it must disadvantage the affected offender.” Cooper, 866 S.W.2d at 138 (citations omitted).

1997Ex Post Facto Cooper again raises the ex post facto clause, on this occasion arguing that drawing a blood sample violates the prohibition against ex post facto laws because it “makes more burdensome the punishment for his crime, deprives [him] of an available defense and takes away substantial rights.” However, “[t]he ex post facto provision prohibits any law that provides for punishment for an act that was not punishable when it was committed or that imposes an additional punishment to that in effect at the time the act was committed.” Cooper v. Missouri Bd. of Probation & Parole, 866 S.W.2d

1988Maggard v. Moore, 613 F.Supp. 150, 152 (W.D.Mo.1985).

1988Maggard v. Moore, 613 F.Supp. 150, 152 (W.D.Mo.1985), holds that parole eligibility is part of the punishment for a crime and retroactive changes in eligibility to the disadvantage of a defendant may, in some cases, violate the ex post facto clause.

2023And Yamamoto v. U.S. Parole Commission, 794 F.2d 1295 , 1300 (8th Cir. 1986), holds that adverse 15 changes in the time at which a prisoner becomes eligible for parole consideration may violate the ex post facto clause.

1988And Yamamoto v. U.S. Parole Commission, 794 F.2d 1295, 1300 (8th Cir.1986), holds that adverse changes in the time at which a prisoner becomes eligible for parole consideration may violate the ex post facto clause.

2013“One of the principal aims of the Ex Post Facto clause is to ensure that individuals have fair notice of what conduct is criminally proscribed.” United States v. Brady, 26 F.3d 282, 290-91 (2d Cir.1994); see Lynce, 519 U.S. at 441 , 117 S.Ct. 891 (stating that fair notice is a “central concern” of the ex post facto clause).

2013“One of the principal aims of the Ex Post Facto clause is to ensure that individuals have fair notice of what conduct is criminally proscribed.” United States v. Brady, 26 F.3d 282, 290-91 (2d Cir.1994); see Lynce, 519 U.S. at 441 , 117 S.Ct. 891 (stating that fair notice is a “central concern” of the ex post facto clause).

2011In Smith v. Doe, 538 U.S. 84 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003), the United States Supreme Court held that Alaska’s sex-offender registration statute did not violate the ex post facto clause as applied to individuals convicted of sex offenses prior to the statute’s effective date.

2011In Smith v. Doe, 538 U.S. 84 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003), the United States Supreme Court held that Alaska’s sex-offender registration statute did not violate the ex post facto clause as applied to individuals convicted of sex offenses prior to the statute’s effective date.

2005Id.

2002In State v. Jackson, this court held that “[a]n enhanced penalty which violates the ex post facto laws works a manifest injustice.” State v. Jackson, 896 S.W.2d 77, 84 (Mo.App.1995).

1995Pitts, 852 S.W.2d at 406 ; Miller, 851 S.W.2d at 717 .

1993State v. Pitts, 852 S.W.2d 405, 406 (Mo.App.E.D.1993).

2023“There is an ex post facto violation when a defendant is sentenced under the [Sentencing] Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense.” Peugh v. U.S., 569 U.S. 530, 533 (2013).

2017See United States v. Williams, 128 F.3d 1239, 1241 (8th Cir. 1997) (noting that restitution under the Child Support Recovery Act of 1992 did not qualify as punishment within the meaning of the ex post facto clause but finding that restitution under the MVRA did constitute punishment).

2017See United States v. Williams, 128 F.3d 1239, 1241 (8th Cir. 1997) (noting that restitution under the Child Support Recovery Act of 1992 did not qualify as punishment within the meaning of the ex post facto clause but finding that restitution under the MVRA did constitute punishment).

2017Contra United States v. Newman, 144 F.3d 531, 540 (7th Cir. 1998) (finding restitution under the MVRA to be non-punitive and, therefore, not punishment within the meaning of the ex post facto clause).

2017In determining the applicability of the MVRA to offenses committed before the date it was enacted, a majority of federal circuits concluded that the application of the MVRA to those offenses violates the ex post facto clause because “restitution imposed as part of a defendant’s sentence is criminal punishment, not a civil sanction, and the shift from discretionary to mandatory restitution increases the punishment meted out to a particular defendant.” United States v. Edwards, 162 F.3d 87, 89 (3d Cir. 1998).

2017See also United States v. Johnson, 145 F.Supp.3d 862, 866 (D.S.D. 2015), and cases cited therein.

2017In determining which version of Section 559.105 applies, however, we must necessarily consider whether the application of the 2013 version violates the ex post facto clause because an enhanced penalty that violates- the ex post facto clause "works a manifest injustice.” State v. Griffin, 172 S.W.3d 861, 865 (Mo. App. 2005).

2013“One of the principal aims of the Ex Post Facto clause is to ensure that individuals have fair notice of what conduct is criminally proscribed.” United States v. Brady, 26 F.3d 282, 290-91 (2d Cir.1994); see Lynce, 519 U.S. at 441 , 117 S.Ct. 891 (stating that fair notice is a “central concern” of the ex post facto clause).