D.S., Respondent, v. MISSOURI STATE HIGHWAY PATROL (2026)

INTRODUCTION

Missouri State Highway Patrol (MSHP) appeals from the circuit court's judgment expunging D.S.’s 2003 misdemeanor possession of marijuana conviction pursuant to article XIV, section 2 of the Missouri Constitution. In its sole point, MSHP claims the circuit court exceeded its authority in granting D.S.’s petition for expungement because the court had no statutory or constitutional authority to hear the petition. We affirm.

Factual and Procedural Background

On November 8, 2022, Missourians approved Amendment 3, which was incorporated as article XIV, section 2 of the Missouri Constitution. The amendment established a procedure that allows “[a]ny person currently incarcerated in a prison, jail or halfway house” who meets certain requirements to petition the sentencing court to vacate the sentence, order immediate release from incarceration and other supervision, and order the expungement of all government records of the case. Mo. Const. art. XIV, section 2.10(7)(a). The next section directed circuit courts to, within six months of the effective date,¹ order the expungement of all misdemeanor marijuana offenses for any person no longer incarcerated or under the supervision of the Department of Corrections. Mo. Const. art. XIV, section 2.10(8)(a).

The compliance deadline for eligible misdemeanor offenses fell on June 8, 2023. On February 6, 2025, nearly twenty months after the deadline had passed, D.S. petitioned the circuit court for expungement of his misdemeanor marijuana conviction under article XIV, section 2. MSHP answered the petition and moved to dismiss on the grounds that D.S. did not qualify for expungement under the petitioning process because he is not currently in a prison, jail, or halfway house as a result of a marijuana-related offense.

The circuit court held a hearing on July 17, 2025, and entered an order expunging D.S.’s misdemeanor marijuana conviction “under [a]rticle XIV[,] section 2.” This appeal follows.

Standard of Review

Although normally raised in a writ of prohibition, “[w]hether a trial court has exceeded its authority is a question of law” which we review de novo. State ex rel. Mo. Pub. Def. Comm'n v. Pratte, 298 S.W.3d 870, 881 (Mo. banc 2009). Questions of law, including statutory and constitutional interpretation, are likewise reviewed de novo. St. Louis Police Leadership Org. v. City of St. Louis, 484 S.W.3d 882, 888 (Mo. App. E.D. 2016).

Discussion

MSHP asserts the circuit court erred and exceeded its authority in granting D.S.’s petition for expungement of a marijuana-related offense because the court had no statutory or constitutional authority to hear the petition.² MSHP argues article XIV, section 2 does not allow for non-incarcerated individuals to petition a court for expungement of a marijuana-related offense. While we agree the circuit court exceeded its authority in hearing the petition, we affirm because the error was harmless.

“[R]ules applicable to constitutional construction are the same as those applied to statutory construction, except that the former are given a broader construction, due to their more permanent character.” Mo. Prosecuting Att'ys v. Barton Cnty., 311 S.W.3d 737, 741 (Mo. banc 2010) (quoting Boone Cnty. Ct. v. State, 631 S.W.2d 321, 324 (Mo. banc 1982)). “In determining the meaning of a constitutional provision the court must first undertake to ascribe to the words the meaning which the people understood them to have when the provision was adopted.” Id. (internal quotation omitted). We “presume every word in a statute has meaning,” and “the phrase under consideration must be evaluated in light of the context in which it is used.” Id. at 742.

When the plain language is clear, courts cannot “read into the Constitution words that are not there.” Indep.-Nat'l Educ. Ass'n v. Indep. Sch. Dist., 223 S.W.3d 131, 137 (Mo. banc 2007). “If the people want to change the language of the constitution, the means are available to do so. This Court will not change the language the people have adopted.” Id. (citation omitted).

Here, the plain language of article XIV, section 2.10 indicates that only persons currently incarcerated in a prison, jail, or halfway house may petition the circuit court for expungement. Individuals who are no longer incarcerated or under the supervision of the Department of Corrections are subject to the automatic expungement procedure set forth in article XIV, section 2.10(8). Allowing those individuals to petition the circuit court for expungement would be “read[ing] into the Constitution words that are not there,” and would effectively “change the language the people have adopted.” Indep.-Nat'l, 223 S.W.3d at 137. Accordingly, the circuit court exceeded its authority in granting D.S.’s petition under article XIV, section 2 because he was not incarcerated for a covered offense.³

At oral argument, MSHP suggested the cause of action in these matters is against the appropriate circuit court. We agree. For purposes of automatic expungement pursuant to article XIV, section 2, MSHP, as the central state depository of criminal records, would receive notice of the expungement and notify the Federal Bureau of Investigation's National Crime Information Center. See Mo. Const. art. XIV, section 2.10(8)(b).

Nevertheless, the court's error in granting D.S.’s petition was harmless because his misdemeanor conviction should have been automatically expunged on or before June 8, 2023.⁴ We will not reverse a judgment unless there was an error “materially affecting the merits of the action.” Rule 84.13(b)⁵ ; see Hampton v. Llewellyn, 663 S.W.3d 899, 902 (Mo. App. W.D. 2023) (“While Murphy v. Carron dictates this Court review the circuit court's judgment to determine if it erroneously declares the law ․ [or] erroneously applies the law, erroneous declaration or application of the law is not itself sufficient to justify reversal.” (alterations in original) (internal quotation omitted)). Additionally, “[c]ourts should avoid construction of the Missouri Constitution that are unreasonable or would lead to absurd results.” Mo. Chamber of Com. & Indus. v. Mo. Ethics Comm'n, 581 S.W.3d 89, 92 (Mo. App. W.D. 2019). Reversing the order of expungement to dismiss MSHP as a party and allow the circuit court to automatically expunge D.S.’s conviction would be an absurd result. Point denied.

Conclusion

For the reasons set forth above, we affirm the judgment of the circuit court.

FOOTNOTES

1.   The amendment provided it would go into effect thirty days after the election. Mo. Const. art. XIV, section 2.13. Accordingly, the amendment went into effect December 8, 2022.

2.   In its argument, MSHP also alleges the court erroneously declared and applied the law by granting D.S.’s petition. Arguments not raised in the point relied on are not properly preserved for appellate review. Lehmann v. Bd. of Educ. of Fayette R3 Sch. Dist., 649 S.W.3d 303, 308 (Mo. App. W.D. 2022). Additionally, erroneous declaration and application of the law are distinct claims that must be raised separately in order to be preserved. In re Marriage of Wasson, 644 S.W.3d 338, 340 n.1 (Mo. App. S.D. 2022). But because we prefer to reach the merits of an appeal “provided we can ascertain the gist of an appellant's arguments, notwithstanding minor shortcomings in briefing,” we will address MSHP's claims ex gratia. City of Bellefontaine Neighbors v. Carroll, 597 S.W.3d 335, 340-41 (Mo. App. E.D. 2020) (internal quotation omitted).

3.   While MSHP claims hundreds of thousands of offenses exist that should have been automatically expunged and predicts that allowing persons entitled for automatic expungement to petition would place an immense burden on Missouri courts, no evidence of these claims was presented to the circuit court.

4.   Although D.S. could have sought expungement of his misdemeanor conviction under RSMo section 610.140 (Cum. Supp. 2024), we agree that he should not have to use one of the three expungements permitted for misdemeanors when the circuit court was directed by the Missouri Constitution to expunge the conviction at issue.

5.   All rule references are to the Missouri Supreme Court Rules (2025).

Virginia W. Lay, Judge

Michael S. Wright, Presiding Judge, concurs. Philip M. Hess, Judge, concurs.