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State v. McMillian

Court of Appeals of Missouri, Southern District, Second Division

January 29, 2015

STATE OF MISSOURI, Plaintiff-Appellant,
v.
TATUM CLARK MCMILLIAN, Defendant-Respondent

APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY. Honorable Michael J. Ligons, Associate Circuit Judge.

For Appellant: JOSEPH R. SCHLOTZHAUER, Jefferson City, MO.

For Respondent: STEVEN A. PRIVETTE, Willow Springs, MO.

MARY W. SHEFFIELD, P.J. - OPINION AUTHOR. NANCY STEFFEN RAHMEYER, J. - CONCURS. GARY W. LYNCH, J. - CONCURS.

OPINION

MARY W. SHEFFIELD, P.J.

Page 463

In this case, the State appeals from the trial court's order dismissing a criminal complaint prior to the preliminary hearing. We dismiss the appeal for lack of appellate jurisdiction.

Procedural Background

Tatum Clark McMillian (" Defendant" ) was charged with one count of felony stealing under Section 570.030.[1] The complaint alleged Defendant " appropriated unemployment benefits of a value of at least five hundred dollars . . . from the Missouri Division of Employment Security with the purpose to deprive it thereof by deceit in that [Defendant] represented to the Missouri Division of Employment Security that he was earning less wages from his employers than he was actually receiving[.]"

On the morning of the preliminary hearing, Defendant filed a motion to dismiss. In support of that motion, Defendant argued the filing of a felony stealing charge was improper for three reasons: (1) it violated Defendant's right to be free from double jeopardy; (2) it unlawfully increased the range of punishment for Section 288.380[2] offenses beyond what the

Page 464

legislature intended; and (3) the maxim of statutory construction which posits that a more specific statute governs over a more general statute required the State to charge Defendant under Section 288.380, the misdemeanor charge, rather than Section 570.030, the felony charge.

The docket entry regarding the events on the day the preliminary hearing was scheduled to take place stated the hearing was " Continued/Rescheduled." Instead, the court considered Defendant's motion to dismiss and allowed the State 20 days to file suggestions in opposition. In those suggestions the State argued (1) there was no double jeopardy violation because the State filed only one charge and (2) the State had the power to choose which criminal charge to file based on the doctrine of ...


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