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State v. Baker

Court of Appeals of Missouri, Western District

May 1, 2018

STATE OF MISSOURI, Appellant,
v.
WILLIAM D. BAKER, Respondent.

          Appeal from the Circuit Court of Randolph County, Missouri The Honorable Scott A. Hayes, Judge.

          Before Division IV: Mark D. Pfeiffer, Chief Judge, and Alok Ahuja and Edward R. Ardini, Jr.

          OPINION

          Mark D Pfeiffer, Chief Judge.

         The State of Missouri ("State") appeals the judgment of the Circuit Court of Randolph

         County, Missouri ("trial court"), granting Mr. William Dale Baker's ("Baker") motion to dismiss the State's charge of forgery wherein the trial court concluded that the facts as alleged were insufficient to support a charge of forgery. We affirm.

         Factual Background

         On October 30, 2016, law enforcement received a call from a minor, J.Z., [1] reporting that her debit card had been stolen from her residence.[2] She had last seen her debit card the previous day on a table in the living room of her home. J.Z. contacted her debit card company and was informed that her card had been recently used at a Dollar General Store and online at the Google Play App Store. Before the unauthorized uses, the debit card had a balance of $90.00, but after the unauthorized uses only thirty-three cents remained. J.Z. learned that the debit card had been used at the Dollar General Store to make a purchase of $2.40 and a $30.00 cash withdrawal. J.Z. informed law enforcement that these purchases were not made by her and that Baker had been at her residence to see her mother the previous day and could have taken the card because he was alone for a period of time at the residence. Law enforcement contacted the Dollar General Store and was able to review the surveillance video at the time of the purchase and cash withdrawal. The investigating officer was able to identify Baker paying for candy and receiving a cash withdrawal at the store on October 29.

         The State originally charged Baker by information ("First Information") with one count of the Class C felony of forgery and one count of the Class A misdemeanor of stealing. The felony charge alleged that Baker, "with the purpose to defraud, made or authenticated a writing, namely a debit card PIN, so that it purported to have been made by authority of one who did not give such authority."[3] A guilty-plea hearing was conducted on February 22, 2017, at which Baker agreed to plead guilty to forgery. The State recited the factual basis for the forgery count as set forth above. The trial court, however, refused to allow Baker to enter a guilty plea to the forgery charge as the trial court found that the factual basis for the plea was insufficient to support it. The case was continued to April 12, 2017.

          On February 24, 2017, the State filed a motion for leave to file an amended felony information ("Amended Information"), which was granted by the trial court. The Amended Information, in relevant part as it related to its Count I forgery charge pursuant to section 570.090.1(3), alleged that Baker, "with the purpose to defraud, made a transaction, so that it purported to have a genuineness or authorship that it did not possess." On February 28, Baker filed his Motion to Dismiss ("Motion"), arguing that the acts alleged by the State did not constitute or support the offense as charged. A hearing was conducted by the trial court regarding Baker's Motion. The trial court granted the Motion regarding the dismissal of Count I of the Amended Information, the forgery charge. The State requested written findings from the trial court as to the forgery charge since the State expressed to the trial court that it intended to immediately appeal the dismissal of the forgery charge. To facilitate the finality of the proceedings below so that the State could proceed with an immediate appeal, the State advised the trial court that it would dismiss Count II, the remaining misdemeanor stealing charge. The trial court complied with the State's request and entered its written judgment granting the Motion on March 27, 2017. The State now appeals raising three claims of error.

         Jurisdiction and Point III on Appeal

         The right of the State to appeal in criminal cases is governed by section 547.200. As none of the bases for appeal in section 547.200.1 are applicable here, this appeal is governed by section 547.200.2, which "permits the State to appeal '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.'" State v. March, 130 S.W.3d 746, 747 (Mo. App. E.D. 2004) (quoting § 547.200.2)). The ability of the State to bring such an appeal is also governed by the rules set forth by the Missouri Supreme Court. See § 547.200.5. Although not specifically required by statute, the rules set forth by the Missouri Supreme Court require a final judgment before an appeal may be pursued under section 547.200.2. March, 130 S.W.3d at 747 (citing State v. Burns, 994 S.W.2d 941, 942 (Mo. banc 1999)); see also Rule 30.01.[4]

         Here, Baker requested the dismissal of the forgery charge with prejudice and the trial court granted the motion. Thereafter, the State requested the entry of a final judgment by the trial court as to the forgery charge and even dismissed its remaining charge of the Amended Information, leaving no additional counts pending in the Amended Information. The trial court then entered its written and signed judgment dismissing Count I of the Amended Information, the forgery charge, on the basis of a deficiency in the information, i.e., failure to allege facts constituting an offense under section 570.090.1(3). The judgment, however, does not specify whether the dismissal was with or without prejudice.

         We need not decide whether the dismissal of the forgery charge was with or without prejudice because in either circumstance we find that the judgment constituted a final judgment subject to appeal. If the dismissal was with prejudice, it is a final order and appealable. State v. Smothers, 297 S.W.3d 626, 630 (Mo. App. W.D. 2009) (dismissal with prejudice is a final order); see also Rule 30.01. However, even if the dismissal was without prejudice, the order is appealable if the "dismissal has the 'practical effect of terminating the litigation in the form in which it is cast or in the plaintiff's chosen forum.'" Smothers, 297 S.W.3d at 630 (quoting Burns, 994 S.W.2d at 943). In Smothers, the trial court granted the defendant's motion to dismiss without prejudice the charge of forgery because the State's evidence did not support a conviction under the charge. Id. at 629-30. This Court found that under such circumstances, the judgment was appealable as it had the practical effect of terminating the litigation in the form in which it was cast and, therefore, the judgment was final and appealable. Id. at 631. The circumstances in this case are virtually identical. In addition, double jeopardy is not at issue, as jeopardy does not attach when an indictment or information is dismissed for the failure to charge an offense. See State v. Reed, 770 S.W.2d 517, 520 (Mo. App. E.D. 1989).

         This does not end our jurisdictional analysis, however, because the State has chosen to take completely contradictory positions on appeal on the topic of jurisdiction. On the one hand, the State argues in its first two points on appeal that this Court has jurisdiction to entertain this appeal because the trial court's judgment is a "final judgment" and has disposed of "all disputed issues in the case and leaves nothing for adjudication." Burns, 994 S.W.2d at 942 (internal quotation marks omitted). Arguing in support of a finding that it is an appeal from a final judgment, the State also states in its appellate briefing that the judgment is final where "the trial court enters an order of dismissal or discharge of the defendant prior to trial which has the effect of foreclosing any further prosecution of the defendant on a particular charge." Id. This, the State claims, is exactly what the trial court's judgment represents. If, however, the State does not prevail in its substantive points on appeal, Points I and II, then the State argues in Point III that there is no final judgment because upon the dismissal of the Amended Information, the felony forgery charge in the First Information was "revitalized."[5]

         To summarize: At the plea hearing, the trial court refused to accept the guilty plea, as the trial court believed there was not a sufficient factual basis for a section 570.090.1(1) forgery guilty plea-based upon the allegations in the First Information. The State responded by filing an Amended Information in which it amended its forgery charge to be instituted pursuant to section 570.090.1(3); again, believing there was no factual basis for the forgery charge in the Amended Information, the trial court dismissed the forgery charge in the Amended Information. Instead of asserting a desire to proceed under the First Information-which the State already knew the trial court would not permit (as to the section 570.090.1(1) forgery charge)-the State announced its desire for the trial court to accept the State's invitation to enter a final judgment, thereby permitting the State to proceed with an immediate appeal of the Amended Information forgery charge dismissal. So as to reach "finality, " the State even dismissed the remaining charge of the Amended Information. Thereafter, the trial court issued the judgment requested by the State, and the State immediately appealed from that judgment. On appeal, the State takes the position that the judgment below is a final judgment and we possess jurisdiction as long ...


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