State v. Faruq
State v. Faruq
Opinion of the Court
Khalifah A. Faruq (“Appellant”) was charged by information with four counts of assault of a law enforcement officer in the first degree, a violation of Section 565.081(1)
Appellant alleges in a single point that the trial court lacked jurisdiction or, alternatively, plainly erred in sentencing him to three years imprisonment for resisting arrest, in violation of his right to due process, because the crime of resisting arrest, as it was charged by the State and submitted to the jury, was a class A misdemeanor, the maximum sentence for which is one year in jail. Appellant asks this court to remand the case for resentencing and an order of immediate discharge.
The crime of resisting arrest may be committed by either “using or threaten
Appellant was charged by information with resisting arrest “by fleeing from the [arresting] officers.” Notwithstanding the statutes and cases cited above, this count was mistakenly charged as a class D felony. The verdict director for this charge alleged that “for the purpose of preventing the law enforcement officers from making the arrest, [Appellant] resisted by fleeing from the officers.” In its verdict, the jury found Appellant guilty of resisting arrest “as submitted.”
The trial court sentenced Appellant to three years imprisonment on this count. The parties agree that this was error and that the case should be remanded for re-sentencing. Appellant correctly characterizes the sentence as outside the jurisdiction of the trial court. “A sentence which is in excess of that authorized by law is beyond the jurisdiction of the sentencing court.” State v. Prell, 35 S.W.3d 447, 450 (Mo.App. W.D. 2000). We agree with the parties that a sentence of three years for a class A misdemeanor clearly is such a sentence, and that the case must be remanded for resentencing.
The only issue to be decided, then, is Appellant’s request that we order his immediate discharge since he “has been incarcerated for these offenses since the date of their occurrence, January 15, 2002, and the maximum possible sentence — even if it could be made consecutive — -would be a total of eighteen months, or until July 15, 2003.” The State contends we have no authority to order an immediate discharge of Appellant based upon time already served, because this “is not an authorized disposition under [Rule] 30.22 and ‘it is the sheriff and Department of Corrections, not the court, that calculate and record time served.’ ” (quoting Murphy v. State, 873 S.W.2d 231, 232 (Mo. banc 1994)).
The trial court sentenced Appellant to three concurrent terms of six months imprisonment for third-degree assault of a law enforcement officer and second-degree property damage, in addition to the three-year term for resisting arrest. Appellant correctly notes that since the trial court only had jurisdiction to sentence him to up to one year, and not three years, for resisting arrest, the maximum allowable length of incarceration is eighteen months, even if the three concurrent six-month terms were ordered to run consecutively with a possible one year maximum term for resisting arrest. Assuming the accuracy of Appellant’s claim that he has been incarcerated continuously since the date of his arrest, January 15, 2002, it appears that July 15, 2003 was the latest Appellant could justifiably have been incarcerated.
However, the State is correct in asserting that courts in Missouri have no authority to calculate or record time served for the purpose of determining when or if Appellant should be released. Section 558.031 addresses the calculation of terms of imprisonment and time served,
The portion of the judgment sentencing Appellant to three years imprisonment for resisting arrest is reversed. In all other respects, the judgment is affirmed. The case is remanded for resentencing within the parameters discussed herein.
. References to statutes are to RSMo (2000) unless otherwise indicated.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.