JUDGES THROW OUT RAY COUNTY DRUG CONVICTION

Missouri appeals judges were clear in a recent decision in a Ray County
drug case: A judge cannot sentence a defendant whose case has been
dismissed, even if the person had pleaded guilty.

The three-judge panel of the Missouri Court of Appeals in Kansas City
issued a decision March 12 overturning the conviction of Richmond resident
Russell D. Kilgore.

Kilgore pleaded guilty in 1998 in Ray County to manufacturing
methamphetamine, a charge he now denies. But before Kilgore was sentenced,
prosecutors dismissed the case.

Ray County Circuit Judge Werner Moentmann, however, said Prosecutor Stanley
Thompson could not drop the charge against Kilgore. At a hearing in 2000,
Moentmann sentenced Kilgore to 15 years in prison. Last year the judge
reduced the sentence to seven years but suspended the sentence and ordered
Kilgore to serve probation. Kilgore served about 10 months in prison.

"I'm very, very bitter," Kilgore said. "This tore my life apart for two
years. First with prison, then probation."

Court of Appeals Judge Victor C. Howard said in the written decision that
Moentmann erred because a judge cannot force the prosecutor to pursue a case.

"Once the (dismissal) has been entered, the trial court loses jurisdiction
to proceed with the case," Howard said.

A spokeswoman from Moentmann's office said the judge had not received the
official copy of the opinion from the court and that he could not comment
because of judicial ethics.

While awaiting his appeal, Kilgore won an injunction from the appeals court
telling Ray County officials to stop all actions in the case, including
probation violation proceedings, until the appeal was resolved.

According to the appeals court decision, the Missouri attorney general's
office, which routinely fights to uphold criminal convictions, also
conceded that Moentmann erred when he sentenced Kilgore.

The case began Nov. 3, 1998, when Kilgore was charged with manufacturing
methamphetamine. Kilgore, who had prior drug and theft convictions, pleaded
guilty a month later. He now denies the allegation but said he pleaded
guilty because he thought a plea agreement with prosecutors assured him of
probation. He said he also feared jurors would view him negatively if he
testified at his trial because of his criminal record.

According to court records, Kilgore did not appear for sentencing in
February 1999. A relative later said in court that Kilgore, who was in
Colorado, had no transportation. Kilgore told the court he was trying to
raise money for his bond, which had gone from $10,000 to $40,000 when he
didn't appear.

While in Colorado, Kilgore was sent to prison on an unrelated charge.

Thompson, who took office in January 1999, dismissed Kilgore's case that
September while Kilgore was incarcerated in Colorado. Thompson said a
witness in the case became unreliable.

In addition, he said, "There was nothing in the file (from the former
prosecutor) showing he had pleaded guilty."

According to court records, on Jan. 10, 2000, Moentmann met with Thompson.
Both agreed that the case could not be dismissed, and an arrest warrant was
issued for Kilgore.

Kilgore appeared in court that March. Moentmann refused to let him withdraw
his guilty plea and sentenced him to prison over objections from Kilgore's
attorney, according to court records.

In January 2001, at a hearing on Kilgore's motion to reconsider his case,
Moentmann agreed to release Kilgore on probation. But Kilgore filed an
appeal and won.

Kilgore said the now-reversed drug conviction has kept him from regaining
his suspended driver's license, which he said he will continue to seek. He
also is fighting to dismiss a Ray County ticket for driving without a license.