After trial by court, Gregory Fosdick was found guilty of the misdemeanor offense of driving while his operator’s license was revoked, in violation of § 302.321,1 and was sentenced to three months’ confinement in the county jail as punishment for the crime. Fosdick appeals, claiming the evidence was insufficient to sustain the conviction. The State did not choose to file a respondent’s brief challenging such claim.
Viewed in the light most favorable to the State, the evidence was that on February 13, 1988, while on patrol, Sergeant Doug Dickey of the Carthage, Missouri Police Department, noticed a pickup truck being driven in an erratic manner, veering back and forth across the center line. Dickey, who suspected the driver of the pickup was intoxicated, started to follow it. The pickup sped away, and eventually left the city limits of Carthage, and proceeded on into Jasper County, where it eventually stopped. The driver, who was Fosdick, fled on foot, but was eventually captured by Dickey and taken to the Carthage Police Department headquarters. After a police dispatcher ran a “computer check,” Dickey cited Fosdick for “Driving While Revoked,” which was followed by the filing of the charge in question.
While Fosdick’s attorney on appeal spends all of her time questioning Dickey’s right to arrest Fosdick at a point beyond the Carthage city limits, a more fundamental reason exists for our belief that the conviction in question cannot stand. It is elemental that the State has the burden of proving each and every element of a criminal offense, and that failure to meet that burden mandates the reversal of any conviction obtained under those circumstances. State v. Johnson, 741 S.W.2d 70, 73 (Mo. App.1987). The information charging Fos-dick with the offense in question reads as follows:
The Prosecuting Attorney of the County of Jasper, State of Missouri, charges that the defendant, in violation of Section 302.321, RSMo., committed the Class A Misdemeanor of driving while license revoked, punishable upon conviction under Section[s] 558.011.1(5), 560.016.1(1) & 302.321, RSMo., in that on or about February 13, 1988, in the County of Jasper, State of Missouri, the defendant drove a motor vehicle on a highway, to-wit: old Highway 66, West of Carthage, Missouri, after his operator’s license was revoked under provision of Sections 302.010 to 302.340.
The two elements required to be proven by the State to justify a conviction on the allegations of the information are that (1) Fosdick was driving the truck, and (2) his operator’s license had been revoked and was still in a state of revocation at the time he was arrested by Sergeant Dickey. There was evidence that Fosdick was driving the pickup, in that Dickey, at trial, positively identified him as the driver. However, we have searched the record in vain for evidence proving the revocation of Fosdick’s operator’s license. The only testimony remotely concerning this issue came during the questioning of the arresting officer by the prosecutor when the following exchange occurred:
Q. All right. After he was subdued by you and, I believe, Officer Evans, was he transported someplace?
A. Yes, sir. I transported him to the Carthage Police Department.
Q. And were there any checks or anything made concerning his license, driving license?
A. Yes, sir. A computer check was performed by the dispatcher, and it was found that, according to—
MR. SPRADLING: I object to any hearsay, Your Honor.
MR. CRAWFORD: All right.
BY MR. CRAWFORD:
Q. After the computer check was run, did you subsequently issue a citation for driving while revoked?
A. Yes, sir. I did.
Q. Okay. And—
Page 56MR. CRAWFORD: I believe that’s all.
THE COURT: You may cross-examine.
After the witness finished his testimony, the following exchange occurred between the trial judge, prosecutor, and defense counsel:
[MR. CRAWFORD:] Your Honor, at this time, we’d offer into evidence State’s Exhibit 2 in accordance with the relevance to cases of statute.
THE COURT: Have you had an opportunity to look through this document?
MR. SPRADLING: I’m sure it’s certified and correct—
THE COURT: Don’t you think he needs to wait in the hall?
MR. CRAWFORD: I don’t intend to call him. Are you going to call him?
MR. SPRADLING: Who’s that?
THE COURT: But he might — I think probably, for safety sake, if you don’t mind waiting out in the hall, please.
MR. CRAWFORD: That’s fine.
THE COURT: Do you have any other witnesses after you offer this document?
Why don’t we go off the record while he reviews this document.
THE COURT: Okay. You’ve reviewed the document?
MR. SPRADLING: Yeah.
THE COURT: It’s been offered. It will be admitted.
(AT THIS TIME STATE’S EXHIBIT NO. 2 WAS RECEIVED IN EVIDENCE AND WAS MADE A PART OF THIS RECORD.)
THE COURT: Do you rest?
MR. CRAWFORD: Yes.
There is nothing in the record to indicate what Exhibit 2 actually was, nor has it been filed here by either party to the appeal, even though Rule 30.05 requires that such be done. On the basis of the record submitted to us, we hold that there is nothing in the record on appeal that proves Fosdick’s operator’s license had been revoked and, therefore, the State has not proved one of the two vital elements of its case.
While the issue of lack of proof of revocation was not mentioned in Fosdick’s brief filed here, that fact has no bearing on our duty to review for plain error matters affecting substantial rights that result in a miscarriage of justice or manifest injustice. Rule 30.20; State v. Sidebottom, 753 S.W.2d 915, 920 (Mo. banc 1988), cert. denied, — U.S. —, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988). If the evidence presented in a criminal case is not sufficient to sustain the conviction, plain error affecting defendant’s substantial rights is involved resulting in manifest injustice. State v. Dayton, 535 S.W.2d 479, 491 (Mo.App.1976). Such is the case here.
The judgment of conviction is reversed. Since the double jeopardy clauses of the United States and Missouri Constitutions preclude a second trial, once the reviewing court finds the evidence introduced at the first trial to be legally insufficient, remand for a new trial is not appropriate. State v. Furne, 642 S.W.2d 614, 617 (Mo. banc 1982).
The defendant is ordered discharged.
1.
Unless otherwise indicated, all references to statutes are to RSMo 1986, V.A.M.S., and all references to rules are to Missouri Rules of Court, V.A.M.R.