author: ALOK AHUJA, Judge.

text:
    Harold S. DYKES, Appellant, v. MISSOURI DEPARTMENT OF CORRECTIONS, Respondent.
    No. WD 72641.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2010.

      Harold S. Dykes, Cameron, MO, Appellant pro se.
    John D. Hoelzer, St. Louis, MO, for respondent.
    Before: ALOK AHUJA, P.J., and VICTOR C. HOWARD and CYNTHIA L. MARTIN, JJ.
   ALOK AHUJA, Judge.

Harold Dykes is currently incarcerated based on his conviction in the Circuit Court for the City of St. Louis for stealing by deceit. He filed this declaratory judgment action contending that the Department of Corrections (the “Department” or “DOC”) had incorrectly calculated the time he spent in custody prior to his conviction which should be credited toward service of his sentence. The circuit court granted the Department’s motion for judgment on the pleadings, and Dykes appeals. We reverse in part, and remand for further proceedings.

Factual Background

Dykes pled the following facts in his Petition. During one week in 2004, Dykes committed a stealing offense in the City of St. Louis and a forgery offense in Scott County. Authorities in Scott County arrested him on a forgery charge on or about September 1, 2004. Dykes was held in jail in Scott County, and later in Mississippi County following a change of venue, awaiting trial on the forgery charge. The Petition and attached exhibits reflect that a bond amount was established on the Scott County charge, which would have permitted Dykes’ release pending the disposition of that charge.

On May 27, 2005, Dykes pled guilty to the Scott County forgery offense, and was sentenced to eighteen months in prison. He was remanded to the Department’s custody to serve his forgery sentence in June 2005. Dykes alleges that he was paroled in connection with the forgery charge on August 24, 2005.

On October 30, 2004, while he was awaiting trial for the Scott County forgery offense, St. Louis authorities issued a warrant for Dykes’ arrest. Dykes’ Petition alleges that “St. Louis City lodged a de-tainer/warrant for [the stealing charge] during Dykes’ incarceration for Forgery, but did not extradite Dykes for [the stealing] charge until Dykes’ release for Forgery.” The Petition alleges that this de-tainer was in place throughout the time period for which Dykes currently seeks credit.

Dykes’ Petition alleges that he “was paroled to detainer in St. Louis on 8-24-05.” After being transferred to the custody of St. Louis authorities, Dykes was released on bond on the stealing charge on August 30, 2005. Dykes’ Petition states that he “was arrested for failure to appear on 4-26-2006 and remained at St. Louis City Justice Center until sentenced for [the stealing charge] on 2-29-2008.”

Dykes was convicted by a jury in the Circuit Court for the City of St. Louis on the stealing by deceit charge, and, on February 29, 2008, was sentenced as a prior and persistent offender to fifteen years’ imprisonment. He alleges that he was remanded to the DOC’s custody for the St. Louis stealing conviction on March 20, 2008.

Dykes asked the DOC to give him credit against his sentence on the St. Louis stealing offense for that portion of the time that he was held in custody on the forgery offense during which the detainer for his stealing offense was active, ie., from October 30, 2004, through August 24, 2005. The DOC denied this request. Dykes then brought the underlying declaratory judgment action seeking credit for this time. The DOC moved for judgment on the pleadings, arguing that Dykes was not entitled to credit as a matter of law. The circuit court agreed, and granted the Department judgment on the pleadings. Dykes appeals.

Standard of Review

On appeal of a judgment on the pleadings we review the petition of the losing party to determine if the facts pled were insufficient as a matter of law. The grant of judgment on the pleadings is upheld where, holding all facts alleged in the opposing party’s petition as true, the moving party was entitled to judgment as a matter of law.

Wallingford v. Mo. Dep’t of Corr., 216 S.W.3d 695, 696 (Mo.App. W.D.2007) (citation omitted).

Analysis

For purposes of the discussion which follows, we divide the time period for which Dykes seeks time-served credit into two sub-periods: (1) the period following the lodging of the St. Louis detainer until Dykes’ conviction of the Scott County forgery charge (ie., the time period from October 30, 2004, through May 27, 2005); and (2) the time period following his conviction and sentencing on the Scott County charges through the date on which his custody was transferred to St. Louis authorities (ie., the period from May 27, 2005, through August 24, 2005).

As to both time periods, credit for time in custody is governed by § 558.031.1. With exceptions not relevant here, the statute provides in relevant part:

A sentence of imprisonment shall commence when a person convicted of a crime in this state is received into the custody of the department of corrections or other place of confinement where the offender is sentenced. Such person shall receive credit toward the service of a sentence of imprisonment for all time in prison, jail or custody after the offense occurred and before the commencement of the sentence, when the time in custody was related to that offense ....

§ 558.031.1 (emphasis added).

I.

With respect to the first period of time at issue — namely, the time from the lodging of the St. Louis detainer, through the time of Dykes’ conviction of the Scott County forgery offense — we believe the result here is controlled by our decisions in Wallingford and in Mikel v. McGuire, 264 S.W.3d 689 (Mo.App. W.D.2008). Under those decisions, Dykes stated a claim for credit for the first time period because his Petition reflects that: (1) he was entitled to pre-trial release on the Scott County charge; and (2) he was simultaneously subject to a detainer related to the St. Louis stealing charge.

As explained in the seminal decision in Goings v. Missouri Department of Corrections, 6 S.W.3d 906 (Mo. banc 1999), “[t]he purpose of section 558.031 undoubtedly is to eliminate the disparity of treatment between indigent defendants, who typically are in custody prior to sentencing, and non-indigents who typically are free on bond prior to sentencing.” Id. at 908.

In Mikel, we observed that

[T]he Missouri Supreme Court has interpreted “related to” [in § 558.031.1] as a “very broad term” that is not restricted to “caused by” or “the result of’ such that a person’s “custody can be ‘related to’ two offenses and the statutory credit will nevertheless apply.” Cases subsequent to Goings suggest that incarceration is related to the subsequent offense where the person is eligible for release on bail on the prior offense, but the subsequent charge prevents the person’s release from custody.

264 S.W.3d at 692 (citations omitted).

In Mikel, an inmate (Mikel) was initially arrested in the City of St. Louis for aggravated stalking and associated offenses, and was convicted there and remanded to the Department to serve his sentence. After his remand to the DOC, St. Louis County filed a detainer against Mikel for first-degree robbery and other charges. Although Mikel had not been the subject of a formal St. Louis County detainer during the time he was awaiting trial in the City, we held that he could be entitled to credit on the St. Louis County sentence for the time spent awaiting trial in the City. We explained that, to obtain credit on the later, St. Louis County charges, Mikel “has to prove that the subsequent offense would have prevented his release from custody on the prior offense,” id.; in other words, “summary judgment [for correctional officials] was only proper if there was no factual dispute as to whether the [St. Louis County robbery charge] would have prevented Mr. Mikel from being released assuming he posted bond on the City charges.” Id.

After stating these principles, Mikel then examined the factual record, and concluded that conflicting evidence existed on two key issues: (1) whether the City had arrested Mikel on behalf of the County, or instead whether the City had acted independently; and (2) whether the City would have released Mikel if he had posted bond or resolved the City charges, or instead whether the City would have held him on behalf of the County, due to the unresolved County charges. Based on this conflicting evidence, this Court concluded that summary judgment on behalf of DOC officials had been improvidently entered:

Granting Mr. Mikel all reasonable inferences, the evidence could support a finding that, had he posted bond for aggravated stalking [as charged by the City of St. Louis], he would have been held in jail for robbery [as charged by the County], which would show that the robbery offense was related to his confinement from July 9, 2004, to November 23, 2004. As this issue was in dispute, the circuit court erred in deciding it against him.

Id. at 698. Thus, we held that the possibility that Mikel was subject to the functional equivalent of a detainer on the County charges while awaiting trial on the City charges was enough to create a triable issue preventing the grant of summary judgment to Department officials.

Similarly, Wallingford holds that an inmate who had been convicted on “offense I,” but had access to an appeal bond for that offense, was entitled to credit under § 558.031.1 on “offense II” during the time he remained incarcerated while the appeal of his conviction for offense I was pending, because he was subject to a separate bond on offense II, which would have prevented his release even if he had posted the appeal bond required on offense I:

In this case, Mr. Wallingford had an appeal bond available for offense I, and at the same time, a pre-trial bond available for offense II. Unlike previous cases involving section 558.031, Mr. Wallingford did not have to remain in jail for the conviction on offense I because he had an appeal bond available to him. Yet, he would have had to remain in jail if he did not also pay the pre-trial bond for offense II. Therefore, the time in prison relates to both offenses. Such jail time should not be credited exclusively toward the sentence of offense I, because Mr. Wallingford was not required to be in jail for either offense, as long as he met the bond demands for both offenses. Thus, the jail time relates to both offenses, and his sentence under offense II should be credited with this time.

216 S.W.3d at 697.

This case is analogous to Mikel and Wallingford. Under those cases, time in custody is “related to” a subsequent offense where an inmate would not be entitled to release merely by satisfying the conditions imposed in connection with a prior offense; instead, to be released the inmate would also have to satisfy conditions imposed because of the subsequent offense. Here, the Petition and attached exhibits reflect that a bond had been established for the Scott County forgery charge. Further, the Petition alleges that a detainer had been lodged against Dykes by St. Louis authorities during the period for which he seeks credit under § 558.031.1. Therefore, as in Mikel and Wallingford, even if Dykes had posted bond on the Scott County forgery charges, he would nevertheless have been held pending disposition (or the setting and satisfaction of conditions of release) on the St. Louis charges. Thus, under the allegations of Dykes’ Petition and the attached exhibits, he may be entitled to credit for the first period of time to which his Petition relates — namely, the period from the lodging of the St. Louis detainer on October 80, 2004, through the date of Dykes’ conviction and sentencing on the Scott County charge on May 27, 2005. The judgment on the pleadings granted to the Department must be reversed with respect to this period of time.

In reaching this conclusion, we recognize that this result would have been self-evident under the prior version of § 558.031.1. That statute, § 558.031.1(1), RSMo 1994, explicitly provided that “[t]ime spent in jail or prison awaiting trial for an offense because of a detainer for such offense shall be credited toward service of a sentence of imprisonment for that offense even though the person was confined awaiting trial for some unrelated bailable offense.” See State ex rel. Lightfoot v. Schriro, 927 S.W.2d 467, 470-71 (Mo.App. W.D.1996).

Although the quoted language was repealed in 1995 in favor of the current version of the statute, we believe that, in this case, the result should be the same as under pre-1995 law. As Mikel explained, prior to 1995, “the statute explicitly required a detainer concerning the offense when ‘the person was [already] confined awaiting trial for some unrelated bailable offense.’” 264 S.W.3d at 691. The 1995 amendment — which added the “very broad” “related to” criterion to the statute — had the effect of expanding the circumstances in which an inmate could obtain credit against his sentence on a second offense, for time awaiting trial on another offense. Although a formal de-tainer may have been necessary under pri- or law, after 1995 “[a] detainer or an arrest warrant concerning the subsequent offense is not needed to prove that time in custody was related to that offense.” Id. at 692. This is exemplified by Mikel itself, where the Court concluded that time in custody could be “related to” a subsequent offense despite the lack of a detain-er, where other evidence indicated that the inmate had been arrested because of the subsequent offense, and that — detainer or no — the inmate would not have been released following disposition of the earlier offense without also resolving the subsequent offense. Id. But although a formally lodged detainer is no longer necessary to prove a “related to” claim in this context, the existence of a detainer is highly probative as to whether incarceration “relates to” the subsequent offense.

II.

We reach the opposite result as to the second period of time at issue here, namely the period from Dykes’ conviction and sentencing on the Scott County forgery charge on May 27, 2005, through his parole on that offense on August 24, 2005. “For time in custody to be ‘related to’ an offense, there must be some right to be free from custody absent the subsequent offense — such as on parole, on bail, or on bond.” Pettis v. Mo. Dep’t of Corr., 275 S.W.3d 313, 318 (Mo.App. W.D.2008). “A charge is unrelated to the time in custody where an inmate would have been in prison anyway.” Id. Thus, where “the prisoner was not entitled to bail on the first offense,” time in custody generally cannot be “related to” a second offense because the inmate “ ‘would have been in custody serving the sentence on the first offense regardless.’ ” Id. (quoting Belton v. Moore, 112 S.W.3d 1, 5 (Mo.App. W.D.2003)); see also Kelly, 58 S.W.3d at 518-19.

Under these decisions, once Dykes had been convicted and sentenced on the Scott County charges, he was not eligible for bail on that offense, and therefore would have remained incarcerated irrespective of the status or disposition of the St. Louis stealing charges. As a matter of law, then, his post-May 27, 2005 custody could not be “related to” the stealing charges, and he was not entitled to credit toward the sentence on his stealing conviction while he was imprisoned for forgery.

Conclusion

For the reasons stated above, the circuit court’s judgment is reversed with respect to Dykes’ claim for credit for time served for the period from October 30, 2004, through May 27, 2005. Dykes’ claim for credit for that time period is remanded to the circuit court for further proceedings. In all other respects the circuit court’s judgment is affirmed.

All concur.

      . Dykes’ declaratory judgment action was originally filed in the Circuit Court for the City of St. Louis but was transferred on venue grounds to the Cole County Circuit Court.

      . Statutory citations are to the RSMo 2000, as updated through the 2009 Cumulative Supplement, unless otherwise indicated.

      . As in Anderson v. Crawford, 309 S.W.3d 863 (Mo.App. W.D.2010), ''[t]he State does not dispute that this declaratory judgment action is the appropriate mechanism for [Dykes] to obtain judicial review of the Department's calculation" of the credit to which he is entitled under § 558.031.1. Id. at 866 n. 4 (collecting cases).

      . This assumes, of course, that the inmate is eligible for conditional release on the prior offense; as we discuss infra § II, where an inmate is not eligible for bail on the first offense, the second offense generally does not "relate to” the time in custody on the first offense.

      . Dykes also argues for credit by emphasizing the purported factual relationship between the Scott County and St. Louis offenses, including similarities in his modus operandi in the two offenses, and the fact that the discovery of his involvement in the Scott County offense may have led to his identification as the perpetrator of the St. Louis offense. But these factual connections between the underlying offenses are not germane under § 558.031.1: “It is not the relationship of the specific facts underlying two convictions, or the fact that two charges were initially tried at the same time and involved the same victim, that is determinative of jail-time credit for purposes of section 558.031. Under section 558.031, it is to 'the time in custody’ that the second conviction must be related.” State ex rel. Nixon v. Kelly, 58 S.W.3d 513, 518-19 (Mo. banc 2001).


source: Caselaw Access Project

author: JOSEPH M. ELLIS, Judge.

license: Public Domain

text:
    Earnest Lee LANGSTON, Appellant, v. MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.
    No. WD 72283.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2010.

      Earnest L. Langston, Appellant pro-se.
    Michael J. Spillane for Respondent.
    Before Division One: THOMAS H. NEWTON, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

Earnest Langston is presently serving sentences in the Missouri Department of Corrections of three consecutive terms of life imprisonment and additional consecutive sentences totaling 224 years imprisonment resulting from a series of crimes he committed in June 1990. Those sentences were imposed in December 1991.

After being informed by the Board of Probation and Parole that he would never be eligible for parole and would never be afforded a parole hearing, Langston filed a pro se petition for declaratory judgment in the Circuit Court of Cole County on September 25, 2009. Langston sought a declaration that the Board had erroneously determined that he would never be eligible for parole and miscalculated his parole eligibility in contradiction to § 217.690(4) and Wolfe v. Missouri Department of Corrections, 199 S.W.3d 219 (Mo.App. W.D.2006).

On October 26, 2009, Langston filed a “Supplemental Petition for Declaratory Judgment Relief’ asking the circuit court to “allow a Supplemental Claim be added to the original petition.” He then set forth a claim that he was entitled to have his consecutive sentences converted to concurrent sentences under § 558.019.5, RSMo 1994.

The Board failed to file an answer to Langston’s original petition. On December 14, 2009, the Board did answer the Supplemental Petition, addressing only the averments contained therein. In addition, the Board filed a motion for judgment on the pleadings contending that Langston failed to state a claim in the Supplemental Petition because § 558.019.5 was only applicable to offenses committed after August 28,1994.

On January 11, 2010, Langston filed a Response to Respondent’s Answer and requested a hearing on the motion. In addition, Langston filed a “Motion for Leave of Court to File Amended Petition” stating that the reason he sought to file an amended brief was because the Board “filed their Answer and other pleading in this case, but has misconscrewed [sic] the issues (or claims) being raised by petitioner” and that he sought to provide a more definite statement so that the State “may make a proper response.” The circuit court never expressly ruled on that motion.

On January 21, 2010, the circuit court entered its judgment stating, in its entirety:

Earnest Lee Langston seeks a declaration that he is entitled to have his consecutive sentences converted to concurrent sentences under § 558.019.5 RSMo 1994. Langston’s pleadings and incorporated exhibits establish that he committed his offenses in June 1990. Section 558.019.5 RSMo 1994 may only be applied to offenses committed on after [sic] August 28, 1994. See § 558.019.7 RSMo Supp.1994. Therefore, Langston’s claim fails as a matter of law.
Wherefore because based on the information in Langston’s own petition and incorporated exhibits Langston’s claim fails as a matter of law, judgment on the pleadings is granted for Respondent.

On February 1, 2010, Langston filed a motion to set aside the judgment noting that the judgment failed to address the claims in his original petition and that the court had not yet ruled on his motion to amend his petition. On February 3, 2010, the circuit court denied Langston’s motion to set aside without comment. Langston now challenges the circuit court’s judgment on appeal, arguing the merits of the claims asserted below.

As in every case in which an appeal is filed, this Court must first determine whether we have the authority to decide the appeal on its merits. Glick Finley LLC v. Glick, 310 S.W.3d 713, 715 (Mo.App. E.D.2010). Aside from a limited number of exceptions enumerated in section 512.020, none of which are applicable herein, “[t]here must be a final judgment in order for appellate review, and where the judgment that is being appealed from is not final, this Court lacks authority and must dismiss the appeal.” Title Partners Agency, LLC v. Dorsey, 308 S.W.3d 308, 310 (Mo.App. E.D.2010). “A final, appeal-able judgment disposes of all issues and parties in the case, leaving nothing for future determination.” Glick, 310 S.W.3d at 715-16. “Where the trial court fails to either resolve all the issues as to all parties or to expressly designate no just reason for delay under Missouri Supreme Court Rule 74.01(b), we must dismiss the appeal.” Id. at 716.

In this case, the Board has filed a Motion to Dismiss Appeal Due to Lack of a Final Appealable Judgment, noting that the judgment failed to address the claims set forth in the original petition and acknowledging that “Langston appears to be entitled to a decision on the claim in the original petition in the trial court.” The Board contends that the appeal should be dismissed because there was no final judgment addressing all of the claims in the case. The motion was taken with the case. As a result, Respondent filed its brief alternatively advocating affirmance of the trial court’s judgment, arguing that Lang-ston’s filing of the Supplemental Petition constituted an unintentional abandonment of the claims in his original petition.

The motion court did not certify this case for appeal under Rule 74.01(b), and its judgment clearly fails to address the claims asserted by Langston in his original petition. Thus, our only remaining consideration is whether the claims in the original petition were live issues before the trial court or whether Langston abandoned them as now asserted by the Board.

As a general rule, “[o]nce an amended pleading is filed, any prior pleadings not referred to or incorporated into the new pleadings are considered abandoned.” State ex rel. Bugg v. Roper, 179 S.W.3d 893, 894 (Mo. banc 2005). The Board’s argument that this rule applies to this case is, however, fundamentally flawed. The petition was denominated a “supplemental petition” and not an “amended petition.” The term “supplemental” means “[t]hat which is added to a thing or act to complete it.” Black’s Law Dictionary 1438 (6th ed.1990). Moreover, the language contained of the Supplemental Petition clearly reflects a desire to supplement, and not to replace, the prior petition, and it clearly and expressly refers to the original petition, asking the circuit court to “allow a Supplemental Claim be added to the original petition.” The abandonment rule does not apply to prior pleadings referenced in the new pleading. Bugg, 179 S.W.3d at 894.

Accordingly, the claims raised in Langston’s original petition have yet to be decided by the trial court. Because the trial court failed to resolve all of the issues before it and has not expressly designated that there is no reason for delay under Rule 74.019(b), this court lacks the authority to entertain Langston’s appeal on the merits. Glick, 310 S.W.3d at 716. The appeal is, therefore, dismissed, and the cause is remanded to the trial court for further proceedings.

All concur.

      . The cover letter accompanying the Supplemental Petition stated, "Please find enclosed herewith Petitioner’s Supplemental Petition which is an additional claim petitioner wish [sic] to be add [sic] to his original petition for declaratory judgment."


author: GARYD. WITT, Judge.

text:
    STATE of Missouri, Respondent, v. Cynthia A. PESCE, Appellant.
    No. WD 71559.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2010.

      William J. Swift, Columbia, MO, for appellant.
    Shaun J. Mackelprang and James B. Farnsworth, Jefferson City, MO, for respondent.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, MARK D. PFEIFFER, Judge and GARY D. WITT, Judge.
   GARYD. WITT, Judge.

After a jury trial, Cynthia Pesce was convicted of possession of a controlled substance (methamphetamine), Section 195.202. Based on this conviction, Pesce was sentenced by the trial court as a “pri- or offender” and “persistent offender” (Section 558.016) to five years in the Missouri Department of Corrections. For the reasons stated below, we affirm Pesce’s conviction and enter an order amending the trial court’s judgment of sentence.

I. Factual Background

Cynthia Pesce was charged in the Circuit Court of Buchanan County with possession of a controlled substance for events occurring on October 23, 2008, in violation of Section 195.202. The substitute information alleged that Pesce was a “persistent offender” under Section 558.016 because she had been convicted of “two or more felonies committed at different times.”

Prior to trial, Pesce filed a motion to suppress the methamphetamine in question, based on her allegation that it was unlawfully seized during an “illegal detention.” After an evidentiary hearing, the trial court denied Pesce’s motion to suppress.

Beginning on July 7, 2009, the case was tried before a jury. After the jury returned a guilty verdict on the sole count charged, the trial court sentenced Pesce to five years in the Missouri Department of Corrections as a prior and persistent offender on September 21, 2009. Pesce now appeals.

Further facts pertaining to the circumstances of Pesce’s arrest and conviction will be outlined as relevant in the analysis section.

II. Analysis

In Point One, Pesce argues that the “trial court clearly erred in overruling the motion to suppress ... methamphetamine found in Ms. Pesce’s car because ... she was unlawfully detained once the check on her driver’s license and registration were completed as the investigation of the alleged traffic violation of careless and imprudent driving was over such that the subsequent questioning that occurred without reasonable suspicion of criminal activity constituted an illegal detention that rendered the continuation of the encounter non-consensual and made any subsequent purported consent to search invalid.”

The Missouri Supreme Court outlined our applicable standard of review in State v. Sund regarding the trial court’s ruling on a motion to suppress:

A trial court’s ruling on a motion to suppress will be reversed on appeal only if it is clearly erroneous. This Court defers to the trial court’s factual findings and credibility determinations, and considers all evidence and reasonable inferences in the light most favorable to the trial court’s ruling. Whether conduct violates the Fourth Amendment is an issue of law that this Court reviews de novo.

215 S.W.3d 719, 723 (Mo. banc 2007) (citations omitted). “When reviewing the trial court’s overruling of a motion to suppress, this Court considers the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court’s ruling.” State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005).

The Fourth Amendment to the United States Constitution guarantees that individuals will not be subject to unreasonable searches or seizures. U.S. Const, amend. IV. A “seizure” occurs when the totality of the circumstances surrounding the incident indicates that “a reasonable person would have believed that he was not free to leave.” State v. Werner, 9 S.W.3d 590, 600 (Mo. banc 2000) (quotation omitted).

“As a general rule, warrantless searches are considered unreasonable and, therefore, prohibited by the Fourth Amendment.” State v. Brand, 309 S.W.3d 887, 892 (Mo.App. W.D.2010). “When a defendant moves to suppress evidence found as a result of a search that she claims violates the Fourth Amendment, it is the State’s burden to show that the search was reasonable and that it was conducted under circumstances such that a warrant was not required.” Id. “One case where a warrant is not required for law enforcement to conduct a search of an automobile is when the owner of the automobile voluntarily consents to the search.” Id. “An officer may at any time ask a citizen whether he has contraband in his car and may ask for permission to search; if consent is given without coercion, the subsequent search is not prohibited by the Fourth and Fourteenth Amendments.” State v. Woolfolk, 3 S.W.3d 823, 831 (Mo.App. W.D.1999).

“A routine traffic stop based on the violation of state traffic laws is a justifiable seizure under the Fourth Amendment.” State v. Granado, 148 S.W.3d 309, 311 (Mo. banc 2004). “So long as the police are doing no more than they are legally permitted and objectively authorized to do, the resulting stop or arrest is constitutional.” Id. “The fact that the police may detain a person for a routine traffic stop does not justify indefinite detention, however.” State v. Barks, 128 S.W.3d 513, 516 (Mo. banc 2004). “The detention may only last for the time necessary for the officer to conduct a reasonable investigation of the traffic violation.” Id. “A reasonable investigation of a traffic violation may include asking for the driver’s license and registration, requesting the driver to sit in the patrol car, and asking the driver about his destination and purpose.” Id. at 517 (quotation omitted).

Here, Pesce does not dispute that the police had probable cause to detain her for the traffic violation of careless and imprudent driving. Rather, it is Pesce’s contention that on appeal that her “continued detention was illegal and made any consent [to search her vehicle] invalid.”

At the suppression hearing, the only evidence presented was the testimony of Trooper John Gilliland of the Missouri State Highway Patrol. Trooper Gilliland testified that on October 23, 2008, he received notice from dispatch that various individuals had complained that a Cadillac Seville, traveling westbound on U.S. 36, “was all over the road, driving off the shoulder and coming back.” Trooper Gilli-land made contact with the Cadillac Seville on U.S. 36 and observed the “vehicle travel off onto the outside shoulder” of the road twice, and he then pulled the vehicle over for a traffic stop.

Trooper Gilliland next made contact with the driver of the vehicle, who identified herself as Cynthia Pesce and provided the Trooper an Iowa identification card, but no driver’s license. Pesce was alone in the vehicle. After being asked by Trooper Gilliland about her erratic driving, Pesce responded that “something was wrong with one of her tires.” Trooper Gilliland checked all four of the tires but found nothing visually wrong with any of them. Trooper Gilliland again advised Pesce why he pulled her over, and Pesce responded by “moving around, speaking rapidly, just kind of act[ing] nervous.” The Trooper “asked her to come and take a seat” in his patrol car.

When Pesce was seated in the patrol car, Trooper Gilliland noticed that she “continued to move around in [her] seat, was moving her hand, you know, twiddling, I mean, moving her hands a lot, speaking very rapidly [and][a]t some times it was hard to understand” her. Trooper Gilli-land testified that Pesce “was constantly shifting her weight in my seat, constantly looking around, even when I was talking to her.” Trooper Gilliland testified that he found this conduct unusual because it was indicative of “drug involvement.”

While detaining Pesce during the traffic stop, Trooper Gilliland asked dispatch to run a records check on Pesce’s car registration, driver’s license, and criminal background, and these records checks eventually were provided to Trooper Gilliland. There is some contradiction in the evidence as to what order the records checks came back, but it appears from the evidence that the car registration and driver’s license checks came back first and the criminal background check came back a few minutes later. Trooper Gilliland testified that the check of Pesce’s driver’s license revealed that she had a suspended driver’s license in Iowa. While Trooper Gilliland did not immediately place her under arrest for this offense, nor did the State charge her with the offense, it goes without saying that the Trooper, at that point, could not allow Pesce to drive away in light of the fact that her license was suspended. It should also be noted that Pesce was also not ever charged or written a ticket for the careless and imprudent driving charge that gave rise to the original stop.

Trooper Gilliland then asked her from where she was coming, and Pesce responded Des Moines, Iowa, which was consistent with the direction she was traveling. Between the time the Trooper was given the results of the car registration check and driver’s license check and the time that the Trooper was given the results of the criminal records check, the Trooper asked Pesce if there was anything illegal in her vehicle, to which Pesce responded that there was not. Trooper Gilliland then asked for Pesce’s consent to search the contents of her vehicle, and Pesce verbally consented to the search. When requesting consent, Trooper Gilliland did not threaten Pesce in any way or suggest that he would obtain a search warrant or call a drug sniffing dog if Pesce did not consent. At the time he asked for Pesce’s consent to search the vehicle, Trooper Gilliland stated that while he “had observed behavior that were indicators to drug use,” he “didn’t have any other reason to suspect her of anything other than careless and imprudent driving” and that Pesce was not under arrest. While searching the trunk of Pesce’s vehicle, Trooper Gilliland found the contraband that led to the instant charge.

At the end of the suppression hearing, the trial court articulated the following grounds to deny Pesce’s motion:

I’m denying the motion to suppress and I’ll tell you the reasons why is, one, it appears it was a voluntary consent.
And I know your issue is that they extended the stop by the trooper for the traffic stop. However, there’s no evidence to support that. There was no evidence I heard that there was an extended length of time that the trooper held the defendant there by the side of the roadway; in other words, waiting for the criminal record.
Perhaps if there was evidence they sat there for 20 minutes or something, that might be some facts that would be more consistent with some of these other opinions. But as I understood it, he ordered these three [record checks of Pesce]. The two came right away. One came a little [bit] longer. Somewhere in that process he asked for the search. He had not issued the tickets yet. He asked to search the vehicle. She consented. He searched the vehicle and found the drugs.
It sounds to me like it was in the process of the traffic stop that he asked these questions while he was talking to her. And the trooper wasn’t in the situation where he had finished the stop, given her the tickets, and then asked additional questions which is — a couple of the cases that’s exactly what happened.
The trooper went ahead and issued the tickets, then in conversation asked some additional questions and asked the consent to search. And under those circumstances it was suppressed.
But that’s not what we have here. We have a situation, as I view the evidence, where the trooper was in the midst of his stop for the traffic violation, asking questions of the defendant, had not issued the tickets, had not stopped the stop, and she consented to the search.
And the Court finds the search was voluntarily consented to. And based on those findings, the Court is denying the defendant’s motion to suppress the evidence seized.

On appeal, the dispositive issue is whether the Trooper’s questioning of Pesce, at which time he obtained Pesce’s consent to search her vehicle, constituted a “reasonable investigation of a traffic violation.” Barks, 128 S.W.3d at 516. The trial court concluded that the detention was reasonable because it only lasted the time necessary for the officer to conduct a reasonable investigation of the traffic violation. Id. Based on our applicable standard of review, we find no error in the trial court’s ruling.

Pesce’s argument on appeal is predicated on her assumption that Trooper Gilli-land’s investigation “was completed when Gilliland got back the driver’s license and registration checks.” Because he did not obtain consent to search Gilliland’s vehicle until after these two record searches were complete, Pesce argues that any further investigation was inherently a dilatory “continued detention” that made Pesce’s subsequent consent to search her car invalid and involuntary. We disagree.

We do not quarrel with the legal proposition relied on by Pesce that once the investigation of a traffic violation is concluded, a motorist must be allowed “ ‘to proceed without further questioning unless specific, articulable facts created an objectively reasonable suspicion that the individual was involved in criminal activity.’ ” Sund, 215 S.W.3d at 723 (quoting Granado, 148 S.W.3d at 311). We also do not quarrel with Pesce’s position that at the time the Trooper requested her consent to search the car, he did not have articulable facts that created an objectively reasonable suspicion that Pesce was under the influence of or in possession of illegal drugs. However, Pesce fails to cite any authority that supports her argument that a “reasonable investigation of a traffic violation” must conclude after the driver’s license and registration check is completed by the police. Pesce ignores the facts that the driver’s license check revealed that her license was suspended and that the Trooper was still waiting on the criminal background check.

The Missouri Supreme Court has expressly held that “[a] reasonable investigation of a traffic violation may include asking for the driver’s license and registration, requesting the driver to sit in the patrol car, and asking the driver about his destination and purpose.” Barks, 128 S.W.3d at 517 (emphasis added and quotation omitted). Simply put, based on the trial court’s factual findings, which we must defer to, it is clear that Trooper Gilliland’s investigation into the reckless driving traffic violation had not yet concluded when he asked Pesce for her consent to search her vehicle. Specifically, the trial court made the following factual findings: “There was no evidence I heard that there was an extended length of time that the trooper held the defendant there by the side of the roadway ... It sounds to me like it was in the process of the traffic stop that he asked these questions while he was talking to her.”

While Pesce claims that she was subjected to continued detention by Trooper Gilli-land, the relevant facts herein are distinguishable from the facts of the cases she relies on because in those cases it was not disputed that the investigation of a traffic violation had in fact concluded when the police further detained the suspect in question in order to conduct a search of the vehicle. See Sund, 215 S.W.3d at 723-24 (holding that “the traffic stop was complete when the officer handed Ms. Sund the warning ticket, returned her license, and told her to ‘be careful’ ” and that then “the officer gained access to the trunk only by threatening to call the dogs to come sniff the car if the women failed to open it”); Barks, 128 S.W.3d at 517 (“The circumstances that resulted in the charge for which Barks was convicted occurred after the patrolman completed his investigation of the traffic stop and issued Barks a traffic citation for speeding [and] Barks had remained in his pickup at the direction of the patrolman.... ”); Granado, 148 S.W.3d at 311 (“In this case, the purpose of the traffic stop was completed prior to the search. Granado committed a traffic violation, was lawfully stopped by the patrolman, and produced a valid license and registration. The patrolman checked Gra-nado’s record, gave him a written warning and informed Granado that he ‘was free to go.’ The purpose of the stop, to investigate a traffic violation, was satisfied.... ”).

Here, it is clear that Pesce’s consent was obtained during a reasonable investigation of a traffic violation. When Trooper Gilli-land requested consent to search her car, Pesce had not yet been cited for the driving infraction, nor had she had been given her identification back. Ultimately, Pesce points to no evidence before the trial court that demonstrated that this investigation of the traffic violation was needlessly prolonged by Trooper Gilliland beyond the confines of a reasonable search as contemplated by the Missouri Supreme Court.

Pesce also makes a distinct argument, almost in passing, that she did not in fact consent to the search in question because “there was no evidence that Pesce was told she could choose to refuse consent” and also because “Gilliland did not ask Pesce to give written consent.” Pesce did not make these arguments before the trial court when presenting her motion to suppress, nor did she raise these specific arguments in her motion for new trial. “The defendant is bound by the arguments made and the issues raised at trial and may not raise new and totally different arguments on appeal.” State v. Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999). Even were we to reach the merits of the arguments, they provide Pesce no basis for relief on appeal because Pesce fails to cite any persuasive authority that holds that she must have been informed of her right to refuse consent prior to waiving that right. See State v. Woolfolk, 3 S.W.3d 823, 831 (Mo.App. W.D.1999). “Moreover, State v. Hyland, 840 S.W.2d 219, 221 (Mo. banc 1992), expressly rejected any requirement that a suspect must be told he may refuse to consent. ‘[A]n effective consent to search is not conditional on knowledge of a right to refuse the search.’ ” Id. (quoting State v. Scott, 926 S.W.2d 864, 870 (Mo.App. S.D.1996)). While a better practice is to have the consent to search in writing, no case holds that this is a prerequisite to a valid consensual search.

Point One is denied.

In Point Two, Pesce argues that the “trial court erred in sentencing [her] as a prior and persistent offender” because the State “failed to prove that she was convicted of two prior felonies as her Iowa conviction for third degree theft was a misdemeanor offense under Iowa law, and therefore, she could not be sentenced as a prior and persistent offender.” We agree.

Prior to the jury’s verdict, the trial court found beyond a reasonable doubt that Pesce was a prior and persistent offender pursuant to Section 558.016. Section 558.016.2 (2009 Cum. Supp.) defines “prior offender” to be “one who has pleaded guilty to or has been found guilty of one felony.” Section 558.016.8 (2009 Cum. Supp.) defines “persistent offender” to be “one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times.” “The trial court must find that a defendant is a prior and persistent offender if: (1) the indictment or information pleads all essential facts warranting the finding; (2) evidence is introduced establishing sufficient facts pleaded to warrant the finding beyond a reasonable doubt; and (3) the trial court finds beyond a reasonable doubt that the defendant is a prior and persistent offender.” State v. Young, 230 S.W.3d 30, 34 (Mo.App. E.D.2007).

Pesce does not dispute that the trial court properly found that she had been previously convicted of one felony of forgery (altering lottery tickets) between June and August 1994. Pesce contends that there was insufficient evidence for the trial court to make the finding that she was a persistent offender because the second felony conviction relied on by the trial court does not constitute a “felony” as a matter of law.

The relevant facts pertaining to this second conviction are undisputed. On September 21, 1994, while in the State of Iowa, Pesce engaged in conduct which caused to her be charged with the crime of theft in the third degree pursuant to the Iowa Code, Section 714.2(3). Under the Iowa Code, this crime is denominated an “aggravated misdemeanor.” Pursuant to her guilty plea to this charge, Pesce was sentenced to two years imprisonment in the Iowa Department of Corrections.

The instant issue on appeal turns on whether Pesce’s Iowa conviction for theft in the third degree constitutes a felony or a misdemeanor pursuant to Missouri law. Section 556.016 defines the terms “felony” and “misdemeanor” as follows:

2. A crime is a “felony” if it is so designated or if persons convicted thereof may be sentenced to death or imprisonment for a term which is in excess of one year.
3. A crime is a “misdemeanor” if it is so designated or if persons convicted thereof may be sentenced to imprisonment for a term of which the maximum is one year or less.

(Emphasis added.)

“We look to the plain language of the statute to determine whether the legislature intended” this conviction to constitute a felony for persistent offender status. State v. Grubb, 120 S.W.3d 737, 739 (Mo. banc 2003). “Statutory interpretation is a question of law, and questions of law are reviewed de novo.” State v. Simmons, 270 S.W.3d 523, 531 (Mo.App. W.D.2008) (internal quotations marks omitted). “The primary objective of statutory interpretation is to ascertain the intent of the legislature and give effect to that intent as it is reflected in the plain language of the statute.” Id. “When the language of the statute is unambiguous, a court must give effect to the language as written.” Id. However, if a statute is ambiguous, and “the ambiguity cannot be resolved by resort to other canons of construction, the rule of lenity applies, and the statute must be interpreted in favor of the defendant.” Turner v. State, 245 S.W.3d 826, 829 (Mo. banc 2008).

We conclude that Pesce’s prior Iowa conviction clearly falls both within the definition of “felony” and “misdemeanor” pursuant to Section 556.016, and that, therefore, the rule of lenity must apply. The Missouri Supreme Court has interpreted the language in question that defines the term “felony” and has held that “[u]nder the plain language of Section 556.016.2, convictions may be considered felonies if they are either labeled as felonies or if persons convicted of them may be sentenced to death or imprisonment for a term in excess of one year.” Grubb, 120 S.W.3d at 739 (emphasis added). Accordingly, when applying this test to the Iowa conviction in question, there can be no doubt that it constitutes a “felony” because Pesce in fact was sentenced in excess of one year.

But it is equally clear that Pesce’s prior conviction also falls within the definition of a “misdemeanor” pursuant to Section 556.016.3. Like Section 556.016.2, Section 556.016.3 sets forth a two part test in defining “misdemeanor,” wherein if the conviction satisfies either part of the test it falls within its definition. While it is not disputed that the conviction does not fall within the later part of Section 556.061.3 because Pesce was sentenced to a two year term of imprisonment for this conviction, this fact alone is not dispositive of our statutory analysis because “it is presumed, of course, that the legislature did not insert idle verbiage or superfluous language in a statute.” Turner, 245 S.W.3d at 828 (internal quotations marks omitted). Rather, we must turn to the first prong of Section 556.061 that states an offense is a “misdemeanor” if the crime is “so designated.” Because the Iowa crime in question was designated an aggravated misdemeanor, it falls within the definition of Section 556.016.3 under its plain and unambiguous language.

The State attempts to analogize Pesce’s “aggravated misdemeanor” conviction to a prior conviction wherein the crime was not designated a felony or a misdemeanor. The Missouri Supreme Court has held that where prior “offenses are not classified as felonies or misdemeanors ... whether [such] convictions qualify as felonies depends on the sentence that may be imposed.” Grubb, 120 S.W.3d at 739. In Grubb, the Missouri Supreme Court con-eluded in the context of a military court-marital conviction for assault, which was not designated as a felony or a misdemeanor, that because “Grubb was sentenced to confinement for eighteen months, his court-marital conviction qualifies as a felony conviction under the plain language of section 556.016.2.” Id. at 740.

Grubb is not controlling because in this case the crime in question was designated a misdemeanor, an aggravated misdemeanor to be precise. It would, therefore, be disingenuous to pretend that it did not fall within the parameters of Section 556.016.3. Had the legislature wished that we look solely at the sentence received pursuant to the prior conviction, it would have expressly stated that legislative intent in the statute. Simmons, 270 S.W.3d at 531. Section 556.016 makes it clear that we are also to determine how the prior conviction in question was “so designated,” and, therefore, here the prior conviction falls within the definition of a “felony” and a “misdemeanor.” In this case, the State asks this Court to do expressly what it cannot; namely, to ignore the express language of the statute, which is unavoidably ambiguous when applied to the facts of this case.

“Where the legislature designates certain conduct as constituting a misdemeanor, that is what it is, regardless of the punishment that can be imposed under the statute.” State v. Heistand, 714 S.W.2d 842, 848 (Mo.App. S.D.1986). In Heistand, the Southern District dealt with the issue of how to classify the crime formerly known as “credit card fraud” (Section 561.4.15, RSMo 1969) in determining whether it was a felony for persistent offender status. Id. While punishment of the crime carried up to five years in prison pursuant to the statute, the Southern District focused on the fact that the statute expressly provided that when one committed the crime of “credit card fraud” that such individual was “guilty of a misdemeanor.” Id. Accordingly, the Southern District concluded that sentencing defendant as a persistent offender was improper when only one of two prior convictions was for a felony. Id.

We acknowledge that this case deals with a prior conviction denominated as a “aggravated misdemeanor” as opposed to one denominated simply as a “misdemeanor,” but this simply highlights the ambiguity we face because this prior conviction does properly fall within both definitions outlined in Section 556.016. “Under the rule of lenity an ambiguity in a penal statute will be construed against the government or party seeking to exact statutory penalties and in favor of persons on whom such penalties are sought to be imposed.” State v. Graham, 204 S.W.3d 655, 656 (Mo. banc 2006).

For all of these reasons, we conclude that the trial court erred in sentencing Pesce as a persistent offender. However, because the State did not improperly use Pesce’s alleged persistent offender status to enhance the class C felony charge of possession of a controlled substance to a class B felony pursuant to Section 558.016, and because the trial court properly sentenced Pesce within the range of a prior offender for a class C felony to five years imprisonment, the error did not have an impact on the length of Pesce’s sentence. Nor did this error improperly take away Pesce’s right to jury sentencing in light of the fact that it is not disputed that Pesce was properly found to be a “prior offender,” and “a prior offender ... is not entitled to jury sentencing.” State v. Teer, 275 S.W.3d 258, 262 (Mo. banc 2009).

Therefore, pursuant to our plenary powers, we enter an order amending the trial court’s judgment, sentencing Pesce as a prior offender to five years in the Missouri Department of Correction. Rule 30.23.

Point Two is granted.

Conclusion

The judgment of the circuit court, as amended, is affirmed.

All concur.

      . All statutory citations are to RSMo 2000 as updated through the 2009 Cumulative Supplement, unless otherwise indicated.

      . Pesce has never contended that prior to giving consent to search the vehicle that she was under arrest, and that, therefore, the police failed to advise her of her Miranda rights thereby violating her constitutional rights in that regard. See State v. Brooks, 304 S.W.3d 130, 133 (Mo. banc 2010).

      . As an alternate basis to attack the trial court’s ruling denying the motion to suppress, Pesce focuses on the fact that Trooper Gilli-land provided inconsistent testimony "as to when he sought consent and why he sought consent.” Specifically, Pesce argues that Gil-liland gave inconsistent testimony as to: (1) whether he knew Pesce had lied about a prior methamphetamine conviction, and (2) whether he believed Pesce’s conduct was consistent with someone who had used illicit drugs, pri- or to asking her consent to search the vehicle. These discrepancies are not material to the core issue as to whether Pesce’s consent was obtained freely and voluntarily because Officer Gilliland did not need reasonable suspicion in order to request that Pesce give her consent to the search. "A search pursuant to proper consent is valid even if the search is not otherwise supported by probable cause or a reasonable suspicion of criminal activity.” State v. Howes, 150 S.W.3d 139, 143 (Mo.App. E.D.2004). To the extent that Pesce insinuates that these discrepancies reflect on Officer Gilliland’s credibility, we note that this determination was for the trial court. "In ruling on a motion to suppress, the trial court may choose to believe or disbelieve all or any part of the testimony presented by the State, even though it may be uncontradicted_” State v. Abeln, 136 S.W.3d 803, 809 (Mo.App. W.D.2004)(quotation omitted).

      . While the Amended Information charged Pesce as a prior drug offender pursuant to Section 195.275, the trial court made no finding or conclusion that she was in fact a prior drug offender.

      . Although it appears that Pesce was convicted of two felony counts of forgery in Iowa, and the Iowa Complaint from 1994 alleged she committed these crimes at "separate times,” the State chose not to rely on these two felony convictions in charging Pesce as a persistent offender in the amended Information for whatever reason. Because the State was required to plead the facts in the information prior to the trial court's finding of persistent offender status, we need not be detained by this issue. State v. Ballard, 169 S.W.3d 893, 894 (Mo.App. E.D.2005).

      . All rule citations are to the Missouri Supreme Court Rules (2010), unless otherwise indicated,


author: SHARON G. LEE, J.,

text:
    Martha GRAHAM v. Clinton CAPLES et al.
    Supreme Court of Tennessee, at Jackson.
    April 6, 2010 Session.
    Oct. 20, 2010.

      Melanie M. Stewart and Matthew S. Russell, Germantown, Tennessee, for the appellant, Clinton Capíes.
    Louis P. Chiozza, Jr., and John W. Leach, Memphis, Tennessee, for the appel-lee, Martha Graham.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the Court,

in which, CORNELIA A. CLARK, C.J., JANICE M. HOLDER, GARY R. WADE, and WILLIAM C. KOCH, JR., JJ., joined.

The issue presented in this interlocutory appeal is whether the plaintiff’s suit for damages was timely filed. The plaintiff and the defendant were involved in a traffic accident on November 4, 2006. Within a year of the accident, on November 2, 2007, the plaintiff filed a civil warrant with the general sessions court clerk against the defendant driver and, erroneously, against herself, seeking damages for personal injuries and property damages. The warrant, although marked “filed,” was not signed by the clerk, had no docket number or issuance date, and was not served on the defendants. Thereafter, on November 13, 2007, the plaintiff filed an “Amended Civil Warrant” against the defendant driver and the defendant owner of the vehicle, seeking damages for personal injuries and property damages. This warrant was properly signed by the clerk, had a docket number and an issuance date, and was served on the defendants. The defendants filed a motion to dismiss, asserting that the first warrant was not valid and that the second warrant had been filed outside the one-year statute of limitations for personal injuries. The trial court granted the motion to dismiss as to the defendant owner and denied the motion as to the defendant driver. We hold that pursuant to Tennessee Code Annotated sections 16-15-710 and 16-15-716, a civil action in the general sessions court is not commenced for purposes of tolling the statute of limitations until the warrant is issued by the clerk. Because the original warrant filed by the plaintiff on November 2, 2007, was not issued by the clerk, the plaintiffs cause of action was not commenced at that time. The plaintiffs claim for personal injuries in the “Amended Civil Warrant” filed on November 13, 2007, was not timely filed within the one-year statute of limitations period and must be dismissed. The plaintiffs claim for property damages in the “Amended Civil Warrant” was timely filed within the three-year statute of limitations period.

Background

On November 4, 2006, the vehicle owned and driven by the plaintiff, Martha Graham, was allegedly rear-ended by a vehicle driven by Clinton Capíes and owned by Linda Capíes. On November 2, 2007, the plaintiff filed a civil warrant with the general sessions court in Shelby County, seeking recovery for property damages and personal injuries against defendants Clinton Capíes and Martha Graham arising from a collision occurring “on or about September 29, 2006[,] at approximately 10:00 p.m. at or near the intersection of Poplac [sic] and 1-240 in Memphis.” The warrant alleged that Clinton Capíes was operating a vehicle owned by Linda Capíes at the time of the collision and that his negligence caused the accident and the plaintiffs injuries. The warrant contained a general sessions court date stamp of November 2, 2007, but named Martha Graham as both the plaintiff and a defendant, did not contain the signature of the court clerk or the deputy clerk, a docket number, or an issuance date, and was never served on the defendants. A receipt from the court clerk shows that a check dated November 2, 2007 in the amount of $97.50 was received from the plaintiffs counsel on November 1, 2007.

On November 13, 2007, the plaintiff filed a document titled “Amended Civil Warrant” with the general sessions court clerk, naming as defendants Clinton Capíes and Linda Capíes and seeking recovery for property damages and personal injuries arising from a collision occurring “on or about November 4, 2006 at approximately 11:30 p.m. at or near the intersection of Elvis Presley and Whitaker in Memphis, Tennessee.... ” This second warrant, as did the first warrant, alleges that the collision was caused by the negligence of Clinton Capíes, who was operating a vehicle owned by Linda Capíes. This “Amended Civil Warrant” bears a handwritten docket number of 1249922, the signature of a deputy clerk of the general sessions court, a general sessions court “filed” stamp date of “2007 NOV 13,” the notation that it was “[i]ssued this 14 day of Nov 2007,” and a certification by the process server that it was served on defendants Clinton Capíes and Linda Capíes on December 3, 2007.

The defendants filed a motion to dismiss the plaintiffs cause of action, asserting that it was not timely filed based on the statute of limitations that requires an action for personal injury be filed within one year of the accrual of the cause of action. Tenn.Code Ann. § 28 — 3—104(a)(1) (2000). Attached to the motion to dismiss was a copy of the first unserved civil warrant. The general sessions court judge granted the motion to dismiss, and the plaintiff appealed to the circuit court for Shelby County.

In the circuit court, the defendants filed a motion to dismiss based on the plaintiffs failure to file her cause of action within the time allowed under the statute of limitations. The motion stated that “[a]nother Civil Warrant was prepared and stamped ‘filed’ in the General Sessions Court on November 2, 2007, and titled Martha Graham vs. Clinton Capíes and Martha Graham” but that “that Summons was not issued and there was no docket number assigned.”

The defendants’ motion to dismiss was granted as to defendant Linda Capíes, who was not named as a defendant in the first warrant, and denied as to defendant Clinton Capíes. Defendant Clinton Capíes was granted leave to pursue an interlocutory appeal to the Court of Appeals. The Court of Appeals denied the request for an interlocutory review. On appeal to this Court, pursuant to Tennessee Rule of Appellate Procedure 9(c), we granted Mr. Capíes permission to file an interlocutory appeal and now address the issue of whether a civil action in general sessions court is commenced for the purposes of tolling the statute of limitations when the original civil warrant is filed with the court clerk but is never issued by the clerk.

Analysis

The original civil warrant in this case, erroneously styled “Martha Graham v. Clinton Capíes and Martha Graham,” was filed in the general sessions court within one year of the accident on November 2, 2007, along with the requisite number of copies for service and a check for the filing fees. A court clerk stamped the original and copies of the warrant as filed “2007 Nov 2 P 3:28” and issued a receipt for $97.50 that sets forth the style of the case, the amount of $97.50, the check number of the tendered check, the name of the payor (the plaintiffs attorney, Louis Chiozza) and states “Service Requested by PDQ Service Process.” The civil warrant was not assigned a docket number, the issuance date was not noted, and it was not issued and signed by the clerk or a deputy clerk of the general sessions court. The trial court determined that this civil warrant was not effective to commence the plaintiffs action. We review the trial court’s decision de novo with no presumption of correctness because it is a question of law. Madden v. Holland Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn.2009).

Procedural matters in general sessions courts are governed by Title 16 of the Tennessee Code. Two sections of Title 16 are applicable to our inquiry. Tennessee Code Annotated section 16-15-710 (2009) provides that “[t]he suing out of a warrant is the commencement of a civil action ..., whether it is served or not; ...” Tennessee Code Annotated section 16-15-716 (2009) provides that “[a] civil action in general sessions court is commenced by a civil warrant issued by the clerk” and sets forth the proper format for a general sessions court warrant that includes a signature line for the clerk or deputy clerk.

We must construe the language of these two statutes to determine when a cause of action commences in the general sessions courts for purposes of tolling the statute of limitations. The primary objective of statutory construction is to determine the intent of the legislature and give effect to that intent. Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 309 (Tenn.2008). To achieve this objective, we begin by examining the language of the statute in question. Curtis v. G.E. Capital Modular Space, 155 S.W.3d 877, 881 (Tenn.2005). This Court presumes that the legislature intended every word be given full effect. Lanier v. Rains, 229 S.W.3d 656, 661 (Tenn.2007). Therefore, if the “language is not ambiguous ... the plain and ordinary meaning of the statute must be given effect.” In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn.2007). It is a further well-settled rule of construction that “statutes ‘in pari materia’ — those relating to the same subject or having a common purpose — are to be construed together, and the construction of one such statute, if doubtful, may be aided by considering the words and legislative intent indicated by the language of another statute.” Wilson v. Johnson Cnty., 879 S.W.2d 807, 809 (Tenn.1994). Where a conflict is presented between two statutes, a more specific statutory provision takes precedence over a more general provision. Amwine v. Union Cnty. Bd. of Educ., 120 S.W.3d 804, 809 (Tenn.2003). Finally, “[a] construction which places one statute in conflict with another must be avoided; therefore, we must resolve any possible conflict between statutes in favor of each other, so as to provide a harmonious operation of the laws.” Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn.1995).

Both sections 16-15-710 and 16-15-716 relate to the time that a civil action is commenced. The first section provides that a case is commenced upon the “suing out of a warrant,” and the latter section provides that a case is commenced when the warrant is “issued by the clerk.” While the precise meaning of the term “suing out” is not clear, the term “issue” has a plain and ordinary meaning which is “to send out or distribute officially,” Black’s Law Dictionary 836 (7th ed. 1990), “a sending or giving out; putting forth.” Webster’s New World Dictionary of the American Language 778 (1966). “Generally, to issue process means to deliver it to an officer charged by law with its service.” 72 C.J.S. Process § 6 (2010). To construe “suing out” to mean nothing more than filing the warrant with the court clerk would be to give the term such a limited construction as to create a conflict between the two code sections and breach the rule that statutes in apparent conflict should be construed to be in harmony. Had the legislature intended that “suing out” be given the limited meaning of “filed,” clearly the legislature would not have provided in section 16-15-716 that a case is commenced when the warrant is issued by the clerk. Commenting on the predecessor statute to 16-15-710, section 16-1135, in General Electric Supply Co. v. Arlen Realty & Development Corp., 546 S.W.2d 210 (Tenn.1977), this Court indicates that the term “suing out” means something more than “filing” and that this distinction results in the imposition of a heavier burden on parties to a suit in a general sessions court:

It should be noted that in General Sessions Court proceedings, actions are still “commenced” by “suing out” process rather than filing a complaint, T.C.A. § 16-1135. In those courts litigants have to assume some responsibility for seeing that this is timely accomplished, much like the older practice in circuit court, prior to adoption of the civil rules.

Id. at 214 n. 4. Further, while “suing out” is a broad and general term, susceptible to various definitions in the context of section 16-15-710, the definition of “issued” considered in its statutory context is specific and limited and, therefore, the former must bow to the latter under the rule that a specific statutory provision shall be given effect over a conflicting general provision. Based upon the plain and ordinary meaning of “issued” and adhering to pertinent rules of statutory construction that whenever the legislature enacts a provision it is aware of other statutes relating to the same subject matter, that statutes in pari materia are to be construed together, and that we must resolve any possible conflict between statutes in favor of each other, so as to provide a harmonious operation of the laws, we hold that a civil action in general sessions court is sued out, and thereby commenced, when the warrant is filed and issued by the clerk. Our conclusion is bolstered by article VI, section 12 of the Tennessee Constitution, which requires that “[a]ll writs and other process shall run in the name of the state of Tennessee and bear test and be signed by the respective clerks.” (emphasis added). The courts of this state long ago concluded that leading process that fails to comply with section 12 is void. See Wiley v. Bennett, 68 Tenn. 581 (1877). It is apparent from the face of the warrant filed on November 2, 2007, that it was never issued by the court clerk; therefore, the plaintiffs cause of action was not commenced on that date.

As a final matter, the plaintiff argues that the defendant waived the statute of limitations as a defense because, upon appeal to the circuit court, he did not raise such defense in his initial pleading in that court. The defendant’s initial pleading in his appeal to the circuit court was a demand for jury that did not assert the statute of limitations as a defense. The plaintiff cites Rule 8.03 of the Tennessee Rules of Civil Procedure, which provides that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute ... statute of limitations ... and any other matter constituting an affirmative defense.” We find no merit in this argument. While the Rules of Civil Procedure are applicable where pertinent to cases appealed from the general sessions court to the circuit court, “the Rules do not require the filing of written pleadings, issuance of new process, or any other steps which have been completed prior to the appealing of the case to the circuit court” Vinson v. Mills, 530 S.W.2d 761, 765 (Tenn.1975) (emphasis added). The defendant’s original motion to dismiss filed in the general sessions court requested dismissal upon assertion that “the statute of limitations had expired.” He was not required to re-plead this defense in his initial pleading on appeal to the circuit court.

Conclusion

We hold that because the warrant filed on November 2, 2007, was not issued by the court clerk, the plaintiff failed to commence her cause of action for personal injuries within the time allotted under the statute of limitations. Therefore, the judgment of the circuit court is reversed to the extent that it denies the motion to dismiss as to the defendant, Clinton Capíes, with respect to the plaintiffs claim for personal injuries. The plaintiffs claim for property damage set forth in the November 13, 2007 civil warrant was timely filed against the defendants within the three-year statutory period. Therefore, the motion to dismiss the plaintiffs cause of action against Clinton Capíes for property damage based on the expiration of the statute of limitations was properly denied and accordingly, to that extent, the judgment of the circuit court is affirmed and the case is remanded to the circuit court for further action in that regard. Costs on appeal are assessed equally against Clinton Capíes and Martha Graham and their respective sureties, for which execution may issue if necessary.

      . We have taken this information from documents attached to defendant Clinton Capíes' motion to dismiss filed in circuit court.

      . The Tennessee Rules of Civil Procedure do not apply to general sessions courts except in certain enumerated instances, none of which are present in this case. Tenn. R. Civ. P. 1.