Missouri Real Estate Commission v. McCormick

ON MOTION FOR REHEARING OR TRANSFER

PER CURIAM.

By a motion for rehearing or transfer, respondent contends this court has misapplied the law because respondent’s “guilty plea and suspended imposition of sentence for ‘stealing funds’ ” and discharge from probation do not constitute being found guilty within the meaning of § 339.100.2(17). The motion has no merit for two reasons.

First, the respondent did not in his Petition for Judicial Review allege he had not been found guilty. He made no such contention before the MREC, or the circuit court or in his brief before this court. In fact the respondent stipulated his conduct falls within § 339.100.2(17). It has long been settled “[respondents in motions for rehearing or to transfer will not be heard on afterthoughts nor on propositions or complaints concerning the disposition of original appeals which were not raised or made in their briefs.” State v. Oliver, 520 S.W.2d 99, 101-102 (Mo.App.1975). The attempt to inject this issue into the case came too late. Ackerman v. Globe-Democrat Publishing Company, 368 S.W.2d 469, 480[12] (Mo.1963), cert. denied, 375 U.S. 949, 84 S.Ct. 353, 11 L.Ed.2d 276 (1963).

Second, Meyer v. Missouri Real Estate Commission, 238 Mo.App. 476, 183 S.W.2d 342 (1944) relied upon by respondent does not support his belated contention. Meyer held the statutory term convicted includes “the judgment of the court upon a verdict or confession of guilt.” Id. 183 S.W.2d at 345. The significant difference between the term “convicted” and “found guilty” is demonstrated, and Meyer and other cases distinguished, in Wolff v. State Board of Chiropractic Examiners, 588 S.W.2d 4 (Mo.App.1979). The distinction is underscored in State v. LaPlant, 673 S.W.2d 782 (Mo.banc 1984) in which the imposition of sentence was suspended. “By virtue of § 558.016.2 the essential showing was of a ‘plea of guilty,’ whether or not followed by a judgment of conviction.” (our emphasis). State v. LaPlant, supra, at 785.

The respondent McCormick was found guilty when his plea of guilty was accepted. The suspension of sentence does not militate against that consequence. The motion is denied.

All concur.