dissenting.
The information in the present case alleges defendant was speeding westbound on 1-64 near McKnight in a zone limited to 55 miles per hour. It also alleges defendant was speeding westbound on 1-64 in violation of § 304.010 RSMo. The only speed limit established by that section relative to an interstate highway is 70 miles per hour, § 304.010.2(1) RSMo Cum.Supp.1990, unless it is reduced by the State Highways and Transportation Commission or by local ordinance with the approval of the Commission, § 304.010.3. The information: (a) is conflicting and confusing, (b) may state two different crimes, and (c) states one crime only if there is proof of an order of the Highways and Transportation Commission or a local ordinance setting a 55 miles per hour speed limit. Accordingly, the information is fatally defective under the first two possibilities and the third does not apply to the present case because no order or ordinance was ever mentioned at trial. After the state closed its evidence, defendant argued to the court the information was defective and acknowledged there was a different statute which the state could have relied on but chose not to. The state made no response. In deciding the case on its merits, the court must have rejected this position.
This court’s opinion suggests the state was “careless” citing § 304.010 rather than § 304.009 and “should” have amended the information. There is no support for either conclusion. The state defended the information before the trial court and during this appeal. It chose § 304.010 and that section may apply to the crime charged. It is applicable to the facts. There is no issue before this court that the information was clerically defective or defective by some omission or surplusage. On the contrary, the state has defended the information as filed and there is support in the record to conclude that the state correctly pled after careful and purposeful consideration.
The decision should not be based on an unsupported assumption that the state intended to plead § 304.009 and that defendant and his counsel were not misled or prejudiced because this statute was available. These assumptions are not viable in a case where the state never adopted that view and defendant never had an opportunity to respond. The decision resolves a dispute which never existed between the parties.
The decision depends on cases which apply to a mere technical defect, one which could or should be detectable by defendant. The present facts are quite different. The state has never suggested a technical defect attributable to an obvious clerical mistake or an obvious omission or surplusage.
A dissent is required because the information is insufficient, as a matter of law, to state the essential elements of a single crime where it charges a violation of both a limitation of 55 miles per hour and a limitation of 70 miles per hour. This became obvious when the state rested without proving the statutory 70 miles per hour speed limit was amended to support a finding defendant was driving in a 55 miles per hour zone. The court erred in denying the relief then requested.