FIRST REGULAR SESSION
HOUSE COMMITTEE SUBSTITUTE FOR
SENATE SUBSTITUTE FOR
SENATE COMMITTEE SUBSTITUTE FOR
SENATE BILL NO. 94
90TH GENERAL ASSEMBLY
Reported from the Committee on Criminal Law, May 4, 1999, with recommendation that the House Committee Substitute for Senate Substitute for Senate Committee Substitute for Senate Bill No. 94 Do Pass.
ANNE C. WALKER, Chief Clerk
AN ACT
To repeal sections 149.011, 149.071, 544.170, 570.020, 570.080 and 570.120, RSMo 1994, and section 570.030, RSMo Supp. 1998, relating to the felony limit for certain crimes, and to enact in lieu thereof seven new sections relating to the same subject, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 149.011, 149.071, 544.170, 570.020, 570.080 and 570.120, RSMo 1994, and section 570.030, RSMo Supp. 1998, are repealed and seven new sections enacted in lieu thereof, to be known as sections 149.011, 149.071, 544.170, 570.020, 570.030, 570.080 and 570.120, to read as follows:
149.011. As used in this chapter, unless the context requires otherwise, the following terms mean:
(1) "Cigar", any roll for smoking, except cigarettes, made chiefly of tobacco or any substitute therefor;
(2) "Cigarette", an item manufactured of tobacco or any substitute therefor, wrapped in paper or any substitute therefor, weighing not to exceed three pounds per one thousand cigarettes and which is commonly classified, labeled or advertised as a cigarette, or any product that contains nicotine, as intended to be burned or heated under ordinary conditions of use, and consists of or contains:
(a) Any roll of tobacco wrapped in paper or in any substance not containing tobacco; or
(b) Tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or
(c) Any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in paragraph (a) of this subdivision.
"Cigarette" includes "roll-your-own", which is any tobacco which, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes. For purposes of this definition of cigarette, nine one hundredths of an ounce of "roll-your-own" tobacco shall constitute one individual cigarette;
(3) "Common carrier", any person, association, company, or corporation engaged in the business of operating, for public use, an agency for the transportation of persons or property within the state;
(4) "Director", the director of Missouri department of revenue;
(5) "First sale within the state", the first sale of a tobacco product by a manufacturer, wholesaler or other person to a person who intends to sell such tobacco products at retail or to a person at retail within the state of Missouri;
(6) "Manufacturer", any person engaged in the manufacture or production of cigarettes;
(7) "Manufacturer's invoice price", the original net invoice price for which a manufacturer sells a tobacco product to a distributor, wholesaler or first seller in the state as shown by the manufacturer's original invoice;
(8) "Meter machine", a type of device manufactured for the use of printing or imprinting an inked impression indicating that the cigarette tax has been paid on an individual package of cigarettes;
(9) "Package of cigarettes", a container of any type composition in which is normally contained twenty individual cigarettes, except as in special instances when the number may be more or less than twenty, or a pack, carton, or container of any kind in which cigarettes are offered for sale, sold, or otherwise distributed, or intended for distribution, to consumers;
(10) "Person", any individual, corporation, firm, partnership, incorporated or unincorporated association, or any other legal or commercial entity;
(11) "Retailer", any person who sells to a consumer or to any person for any purpose other than resale;
(12) "Sale" in this instance is defined to be and declared to include sales, barters, exchanges and every other manner, method and form of transferring the ownership of personal property from one person to another. "Sale" also means the possession of cigarettes or tobacco products by any person other than a manufacturer, wholesaler or retailer and shall be prima facie evidence of possession for consumption;
(13) "Smokeless tobacco", chewing tobacco, including, but not limited to, twist, moist plug, loose leaf and firm plug, and all types of snuff, including, but not limited to, moist and dry;
(14) "Stamped cigarettes", an individual package, containing twenty individual cigarettes, more or less, on which appears or is affixed or imprinted thereon a Missouri state cigarette tax stamp or Missouri state meter machine impression;
(15) "Tax stamp", an item manufactured of a paper product or substitute thereof on which is printed, imprinted, or engraved lettering, numerals or symbols indicating that the cigarette tax has been paid on each individual package of cigarettes;
(16) "Tobacco product", cigarettes, cigarette papers, clove cigarettes, cigars, smokeless tobacco, smoking tobacco, or other form of tobacco products or products made with tobacco substitute containing nicotine;
(17) "Unstamped cigarettes", an individual package containing cigarettes on which does not appear a Missouri state cigarette tax stamp or Missouri state meter machine impression;
(18) "Wholesaler", any person, firm or corporation organized and existing, or doing business, primarily to sell cigarettes or tobacco products to, and render service to, retailers in the territory the person, firm or corporation chooses to serve; that purchases cigarettes or tobacco products directly from the manufacturer; that carries at all times at his or its principal place of business a representative stock of cigarettes or tobacco products for sale; and that comes into the possession of cigarettes or tobacco products for the purpose of selling them to retailers or to persons outside or within the state who might resell or retail the cigarettes or tobacco products to consumers. This shall include any manufacturer, jobber, broker, agent or other person, whether or not enumerated in this chapter, who so sells or so distributes cigarettes or tobacco products.
149.071. 1. Any person who shall, without the authorization of the director of revenue, make or manufacture, or who shall falsely or fraudulently forge, counterfeit, reproduce, restore, or process any stamp, impression, copy, facsimile, or other evidence for the purpose of indicating the payment of the tax levied by this chapter, or who shall knowingly or by a deceptive act use or pass, or tender as true, or affix, impress, or imprint, by use of any device, rubber stamp or by any other means, or any package containing cigarettes, any unauthorized, false, altered, forged, counterfeit or previously used stamp, impressions, copies, facsimilies or other evidence of cigarette tax payment, shall be guilty of a felony and, upon conviction, shall be punished by imprisonment by the state department of corrections and human resources for a term of not less than two years nor more than five years.
2. No tax stamp may be affixed to, or made upon, any package of cigarettes if:
(1) The package does not comply with all the requirements of the Federal Cigarette Labeling and Advertising Act (15 U.S.C. Sec. 1331 and following), for the placement of labels, warnings, or any other information upon a package of cigarettes that is to be sold within the United States; or
(2) The package has been imported into the United States after January 1, 2000, in violation of 26 U.S.C. Sec. 5754;
(3) The package is labeled "For Export Only", "U.S. Tax Exempt", "For Use Outside U.S.", or similar wording indicating that the manufacturer did not intend that the product be sold in the United States; or
(4) The package, or a package containing individually stamped packages, has been altered by masking or deleting the wording described in subdivision (3) of this subsection.
3. Any person who sells or holds for sale cigarette packages to which is affixed a tax stamp in violation of this section shall be guilty of a class D felony upon conviction.
4. The department of revenue may revoke a wholesale license of any person who sells or holds for sale cigarette packages to which is affixed a tax stamp in violation of this section.
5. The department of revenue may seize and destroy or sell only for export to licensed exporters cigarette packages to which is affixed a tax stamp in violation of this section.
6. A violation of this section is a deceptive act or practice under this section.
544.170. 1. Except as provided in subsection 2 of this section, all persons arrested and confined in any jail[, calaboose] or other place of confinement by any peace officer, without warrant or other process, for any alleged breach of the peace or other criminal offense, or on suspicion thereof, shall be discharged from said custody within twenty hours from the time of such arrest, unless they shall be charged with a criminal offense by the oath of some credible person, and be held by warrant to answer to such offense[; and every such person shall, while so confined, be permitted at all reasonable hours during the day to consult with counsel or other persons in his behalf; and any person or officer who shall violate the provisions of this section, by refusing to release any person who shall be entitled to such release, or by refusing to permit him to see and consult with counsel or other persons, or who shall transfer any such prisoner to the custody or control of another, or to another place, or prefer against such person a false charge, with intent to avoid the provisions of this section, shall be deemed guilty of a misdemeanor].
2. Upon a determination by the chief executive officer or his designee of the arresting agency that a person was arrested for one of the following offenses:
(1) First degree murder pursuant to section 565.020, RSMo;
(2) Second degree murder pursuant to section 565.021, RSMo;
(3) First degree assault pursuant to section 565.050, RSMo;
(4) Forcible rape pursuant to section 566.030, RSMo;
(5) Forcible sodomy pursuant to section 566.060, RSMo;
(6) First degree robbery pursuant to section 569.020, RSMo; or
(7) Distribution of drugs pursuant to section 195.211, RSMo;
without warrant or other process, shall be discharged from custody within forty-eight hours of such arrest, unless the person is charged and held by warrant to answer to such offense.
3. Every person confined pursuant to subsection 1 or 2 of this section shall be permitted at all reasonable hours during the day to consult with counsel or other persons in the confinee's behalf.
4. Any person or officer who violates the provisions of this section, by refusing to release any person who is entitled to such release, or by refusing to permit the confinee to see and consult with counsel or other persons, or who transfers any such prisoner to the custody or control of another, or to another place, or prefers against such person a false charge, with intent to avoid the provisions of this section, is guilty of a class A misdemeanor.
570.020. For the purposes of this chapter, the value of property shall be ascertained as follows:
(1) Except as otherwise specified in this section, "value" means the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime. If the victim is a merchant, as defined in section 400.2-104, RSMo, and the property is a type that the merchant sells in the ordinary course of business, then the property shall be valued at the price that such merchant would normally sell such property;
(2) Whether or not they have been issued or delivered, certain written instruments, not including those having a readily ascertainable market value such as some public and corporate bonds and securities, shall be evaluated as follows:
(a) The value of an instrument constituting evidence of debt, such as a check, draft or promissory note, shall be deemed the amount due or collectible thereon or thereby, such figure ordinarily being the face amount of the indebtedness less any portion thereof which has been satisfied;
(b) The value of any other instrument which creates, releases, discharges or otherwise affects any valuable legal right, privilege or obligation shall be deemed the greatest amount of economic loss which the owner of the instrument might reasonably suffer by virtue of the loss of the instrument;
(3) When the value of property cannot be satisfactorily ascertained pursuant to the standards set forth in subdivisions (1) and (2) of this section, its value shall be deemed to be an amount less than one hundred fifty dollars.
570.030. 1. A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.
2. Evidence of the following is admissible in any criminal prosecution under this section on the issue of the requisite knowledge or belief of the alleged stealer:
(1) That he or she failed or refused to pay for property or services of a hotel, restaurant, inn or boardinghouse;
(2) That he or she gave in payment for property or services of a hotel, restaurant, inn or boardinghouse a check or negotiable paper on which payment was refused;
(3) That he or she left the hotel, restaurant, inn or boardinghouse with the intent to not pay for property or services;
(4) That he or she surreptitiously removed or attempted to remove his or her baggage from a hotel, inn or boardinghouse;
(5) That he or she, with intent to cheat or defraud a retailer, possesses, uses, utters, transfers, makes, alters, counterfeits or reproduces a retail sales receipt, price tag or universal price code label, or possesses with intent to cheat or defraud, the device that manufactures fraudulent receipts or universal price code labels.
3. Stealing is a class C felony if:
(1) The value of the property or services appropriated is [seven] five hundred [fifty] dollars or more; or
(2) The actor physically takes the property appropriated from the person of the victim; or
(3) The property appropriated consists of:
(a) Any motor vehicle, watercraft or aircraft; or
(b) Any will or unrecorded deed affecting real property; or
(c) Any credit card or letter of credit; or
(d) Any firearms; or
(e) A United States national flag designed, intended and used for display on buildings or stationary flagstaffs in the open; or
(f) Any original copy of an act, bill or resolution, introduced or acted upon by the legislature of the state of Missouri; or
(g) Any pleading, notice, judgment or any other record or entry of any court of this state, any other state or of the United States; or
(h) Any book of registration or list of voters required by chapter 115, RSMo; or
(i) Any animal of the species of horse, mule, ass, cattle, swine, sheep, or goat; or
(j) Live fish raised for commercial sale with a value of seventy-five dollars; or
(k) Any controlled substance as defined by section 195.010, RSMo.
4. If an actor appropriates any material with a value less than one hundred fifty dollars in violation of this section with the intent to use such material to manufacture, compound, produce, prepare, test or analyze amphetamine or methamphetamine or any of their analogues, then such violation is a class D felony. The theft of any amount of anhydrous ammonia, or any attempt to steal any amount of anhydrous ammonia, is a class D felony if the value is less than five hundred dollars, and a class C felony if the value is five hundred dollars or more.
5. The theft of any item of property or services under subsection [3] 4 of this section which exceeds [seven] five hundred [fifty] dollars may be considered a separate felony and may be charged in separate counts.
6. Any person with a prior conviction of paragraph (i) of subdivision (3) of subsection [3] 4 of this section and who violates the provisions of paragraph (i) of subdivision (3) of subsection [3] 4 of this section when the value of the animal or animals stolen exceeds three thousand dollars is guilty of a class B felony.
7. Any violation of this section for which no other penalty is specified in this section is a class A misdemeanor.
570.080. 1. A person commits the crime of receiving stolen property if for the purpose of depriving the owner of a lawful interest therein, he receives, retains or disposes of property of another knowing that it has been stolen, or believing that it has been stolen.
2. Evidence of the following is admissible in any criminal prosecution under this section to prove the requisite knowledge or belief of the alleged receiver:
(1) That he was found in possession or control of other property stolen on separate occasions from two or more persons;
(2) That he received other stolen property in another transaction within the year preceding the transaction charged;
(3) That he acquired the stolen property for a consideration which he knew was far below its reasonable value.
3. Receiving stolen property is a class A misdemeanor unless the property involved has a value of [one] five hundred [fifty] dollars or more, or the person receiving the property is a dealer in goods of the type in question, in which cases receiving stolen property is a class C felony.
570.120. 1. A person commits the crime of passing a bad check when:
(1) With purpose to defraud, [he] the person makes, issues or passes a check or other similar sight order for the payment of money, knowing that it will not be paid by the drawee, or that there is no such drawee; or
(2) [He] The person makes, issues, or passes a check or other similar sight order for the payment of money, knowing that there are insufficient funds in [his] that account or that there is no such account or no drawee and fails to pay the check or sight order within ten days after receiving actual notice in writing that it has not been paid because of insufficient funds or credit with the drawee or because there is no such drawee.
2. As used in subdivision (2) of subsection 1 of this section, actual notice in writing means notice of the nonpayment which is actually received by the defendant. Such notice may include the service of summons or warrant upon the defendant for the initiation of the prosecution of the check or checks which are the subject matter of the prosecution if the summons or warrant contains information of the ten-day period during which the instrument may be paid and that payment of the instrument within such ten-day period will result in dismissal of the charges. The requirement of notice shall also be satisfied for written communications which are tendered to the defendant and which the defendant refuses to accept.
3. The face amounts of any bad checks passed pursuant to one course of conduct within any ten-day period may be aggregated in determining the grade of the offense.
4. Passing bad checks is a class A misdemeanor, unless:
(1) The face amount of the check or sight order or the aggregated amounts is one hundred fifty dollars or more; or
(2) The issuer had no account with the drawee or if there was no such drawee at the time the check or order was issued, in which cases passing bad checks is a class D felony.
5. (1) In addition to all other costs and fees allowed by law, each prosecuting attorney or circuit attorney who takes any action under the provisions of this section shall collect from the issuer in such action an administrative handling cost. The cost shall be [five dollars for checks of less than ten dollars, ten dollars for checks of ten dollars but less than one hundred dollars, and twenty-five dollars for checks of one hundred dollars or more] twenty-five dollars for any bad check. For checks of one hundred dollars or more, an additional fee of ten percent of the face amount shall be assessed, with a maximum fee for administrative handling costs not to exceed fifty dollars total. Notwithstanding the provisions of sections 50.525 to 50.745, RSMo, the costs provided for in this subsection shall be deposited by the county treasurer into a separate interest-bearing fund to be expended by the prosecuting attorney or circuit attorney. The funds shall be expended, upon warrants issued by the prosecuting attorney or circuit attorney directing the treasurer to issue checks thereon, only for purposes related to that [previously] authorized in this section. Any revenues that are not required for the purposes of this section may be placed in the general revenue fund of the county or city not within a county.
(2) The moneys deposited in the fund may be used by the prosecuting or circuit attorney for office supplies, postage, books, training, office equipment, [capital outlay,] expenses of trial and witness preparation, additional employees for the staff of the prosecuting or circuit attorney and employees' salaries.
(3) This fund may be audited by the state auditor's office or the appropriate auditing agency.
(4) If the moneys collected and deposited into this fund are not totally expended annually, then the unexpended balance shall remain in said fund and the balance shall be kept in said fund to accumulate from year to year.
6. [Notwithstanding any other provisions of law to the contrary, in addition to the administrative handling costs provided for in subsection 5 of this section, the prosecuting attorney or circuit attorney may, in his discretion, collect from the issuer, in addition to the face amount of the check, a reasonable service charge, which along with the face amount of the check shall be turned over to the party to whom the bad check was issued. If the prosecuting attorney or circuit attorney does not collect the service charge and the face amount of the check, the party to whom the check was issued may collect from the issuer a reasonable service charge along with the face amount of the check.] Notwithstanding any other provision of law to the contrary:
(1) In addition to the administrative handling costs provided for in subsection 5 of this section, the prosecuting attorney or circuit attorney shall collect from the issuer, in addition to the face amount of the check, a reasonable service charge, which along with the face amount of the check, shall be turned over to the party to whom the bad check was issued;
(2) If a check that is dishonored or returned unpaid by a financial institution is not referred to the prosecuting attorney or circuit attorney for any action pursuant to the provisions of this section, the party to whom the check was issued, or his or her agent or assignee, or a holder, may collect from the issuer, in addition to the face amount of the check, a reasonable service charge, not to exceed thirty dollars, plus an amount equal to the actual charge by the depository institution for the return of each unpaid or dishonored instrument.
7. In all cases where a prosecutor receives notice from the original holder that a person has violated this section with respect to a payroll check or order, the prosecutor, if [he] such prosecutor determines there is a violation of this section, shall file an information or seek an indictment within sixty days of such notice and may file an information or seek an indictment thereafter if the prosecutor has failed through neglect or mistake to do so within sixty days of such notice and if [he] such prosecutor determines there is sufficient evidence shall further prosecute such cases.
8. When any financial institution returns a dishonored check to the person who deposited such check, it shall be in substantially the same physical condition as when deposited, or in such condition as to provide the person who deposited the check the information required to identify the person who wrote the check.