Cape man's DWI conviction upheld; sentence remanded to trial court

Wednesday, October 8, 2008

The Missouri Court of Appeals ruled Tuesday to uphold the conviction of a Cape Girardeau man for driving while intoxicated but remanded his case for sentencing because of a change in state law reflecting how a prior and persistent DWI offender can be charged.

Vernon Bizzell, who was arrested in August 2006 and charged with a DWI, had two prior alcohol-related traffic offenses at the time, but one was an ordinance violation resulting in a suspended imposition of sentence.

The municipal offense on Bizzell's record was used at the time of the original charges to upgrade the crime from a misdemeanor to a felony, meaning he received a sentence of three years in prison.

Before Bizzell's trial, a municipal ordinance resulting in a suspended imposition of sentence could be used to demonstrate that someone was a prior and persistent offender.

A Missouri Supreme Court ruling after Bizzell's conviction but before his direct appeal was completed dictated that a suspended imposition of a sentence issued for a municipal ordinance offense could not be used to enhance punishment. Because the Supreme Court ruling was handed down before the completion of Bizzell's appeal, the appellate court ruled that it applied to his case and therefore a municipal ordinance couldn't be used to enhance the severity of his punishment.

Bizzell's sentence as a prior and persistent offender was reversed and remanded to the trial court, Cape Girardeau County Circuit Court, with instructions that the state present other evidence showing him as a prior and persistent offender.

335-6611, extension 245

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