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State v. McMillian

Court of Appeals of Missouri, Southern District, Second Division

January 29, 2015

STATE OF MISSOURI, Plaintiff-Appellant,
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.




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 prosecutorial discretion. The trial court dismissed the complaint without stating the grounds for that decision. The State appeals.


Before addressing the State's arguments, we must first examine Defendant's argument that we lack jurisdiction because the trial court's dismissal order was not a final judgment. We agree.

Under Section 547.200.2, RSMo (2000), and Rule 30.01(a),[3] a final judgment is a prerequisite to appellate review in a criminal case. See State v. Burns, 994 S.W.2d 941, 942 (Mo. banc 1999). Generally speaking, a dismissal without prejudice is not a final judgment. Id. at 943. Additionally, it is well settled that " [t]he state cannot appeal a dismissal at a preliminary hearing." State v. Kiesau, 794 S.W.2d 309, 312 (Mo. App. S.D. 1990) (quoting State v. Thomas, 529 S.W.2d 379, 382 (Mo. 1975)).

In the present case, the trial court dismissed the case, without prejudice, at the preliminary hearing stage. Consequently, there was no final judgment, and we lack jurisdiction to consider this case on the merits.

In support of its argument to the contrary, the State relies on State v. Smothers, 297 S.W.3d 626 (Mo. App. W.D. 2009). This reliance is misplaced. Smothers does not speak to the issue presented in the present case because Smothers involved the dismissal of a felony information. Id. at 629. That is, the dismissal did not occur at the preliminary hearing stage, but after the preliminary hearing stage.

Although there was no final judgment in the case, our decision does not leave the State without remedy. " The general rule on the refilling of a complaint, after a finding of no probable cause, does not contemplate the presentation of evidence to the same judge a second time." State ex rel. Brown v. Duggins, 601 S.W.2d 11, 13 (Mo. banc 1980). Thus, if the State files another complaint regarding the facts giving rise to this case, the judge who dismissed the first complaint must recuse.


The State's appeal is dismissed.

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