Where a defendant who originally pleaded guilty to stealing challenged the revocation of his probation and sentence for felony stealing, the trial court erred in sentencing the defendant for a felony when State v. Bazell held that stealing under the statute in effect at the time was a misdemeanor that could not be enhanced to a felony, and the fact that the defendant pleaded guilty does not prevent him from claiming on direct appeal that the sentence was excessive under Bazell, so the judgment is reversed and remanded for resentencing for misdemeanor stealing.
Dissenting opinion by Powell, J.; “I respectfully dissent. Because Jason Russell entered a plea of guilty, he cannot raise a claim that he was sentenced in excess of the maximum sentence authorized by law on direct appeal. He must instead raise his claim in a Rule 24.035 motion for postconviction relief. See Hamilton v. State, SC97881, __ S.W.3d __ (Mo. banc 2020).”
Judgment is reversed and remanded.
State v. Russell (MLW No. 74980/Case No. SC97916 – 22 pages) (Supreme Court of Missouri, Stith, J.; Draper, C.J., Russell and Breckenridge, JJ., concur; Powell, J. dissents in separate opinion filed; Wilson and Fischer, JJ., concur in opinion of Powell, J.) Appealed from circuit court, Lincoln County, Beck, J. (Craig Johnston, Columbia, for Russell) (Gregory L. Barnes, Jefferson City, for the state).