APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY. Honorable John Beeler, Special Judge
Garrison, Montgomery, Flanigan
The opinion of the court was delivered by: Garrison
Respondent (Defendant) was charged by information with attempted stealing, a class D felony under § 564.011. *fn1 The information alleged:
The case was set for jury trial on September 16, 1991. After a jury was impaneled and sworn, but before the introduction of any evidence, Defendant filed a motion to dismiss contending that the information alleged a completed act of felony stealing and, "since failure of consummation is an element of a criminal attempt, the completed crime cannot be used as the substantial step toward the commission of that same crime." The State appeals the trial court's sustaining of that motion. *fn2
The State's right to appeal in a criminal case is dependent upon statutory authorization. State v. Coor, 740 S.W.2d 350, 352 (Mo.App. 1987). Section 547.210 permits an appeal by the State when an indictment or information is held to be insufficient. Section 547.200.2, however, provides, in pertinent part:
The state, in any criminal prosecution, shall be allowed an appeal in the cases and under the circumstances mentioned in section 547.210 and in all other criminal cases except in those cases where the possible outcome of such an appeal would result in double jeopardy for the defendant. . . .
In State v. Casaretto, 818 S.W.2d 313 (Mo.App. 1991), the court, referring to § 547.200.2, said:
Double jeopardy is an issue which is always raised by the State's appeal of a criminal matter. The State is only permitted to appeal where the right is explicitly conferred by statute and where no double jeopardy can result.
Id. at 315. Because the double jeopardy issue goes to the jurisdiction of the court, it is properly raised sua sponte even though it is not raised by the parties. State v. Reed, 770 S.W.2d 517, 519 (Mo.App. 1989).
It has been held that in a jury trial jeopardy attaches when the jury is impaneled and sworn. Serfass v. United States, 420 U.S. 377, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975). However, the Conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial. See Illinois v. Somerville, 410 U.S. 458, 467, 93 S. Ct. 1066, 1072, 35 L. Ed. 2d 425, 433 (1973) (holding that the granting of a mistrial due to a defect in the wording of the indictment did not prevent retrial even though the mistrial was declared after the jury was impaneled and sworn and over the objection of defendant). In United States v. Scott, 437 U.S. 82, 98-99, 98 S. Ct. 2187, 2198, 57 L. Ed. 2d 65, 79 (1978), the court held that a defendant who, after the introduction of evidence, deliberately chooses to seek termination of the proceedings against him by a motion to dismiss, unrelated to factual guilt or innocence, suffers no injury cognizable under the Double Jeopardy Clause if the State is permitted to appeal and seek reversal of the dismissal. See also United States v. Kehoe, 516 F.2d 78, 86 (5th Cir. 1975) (holding that a defendant who delays, for reasons of trial tactics, filing a motion attacking an indictment until after the jury is sworn and some evidence has been heard is not entitled to prevent a retrial on the basis of the Double Jeopardy Clause). We do, therefore, find that this appeal is not prevented by the application of § 547.200.2.
The State, in this appeal, argues that the trial court erred when it dismissed the information on the basis that a completed act of stealing could not support a charge of attempting to commit that offense. We agree.
Section 564.011.1 provides:
A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A "substantial step" is conduct which is strongly corroborative of the ...