from the Circuit Court of Randolph County, Missouri The
Honorable Scott A. Hayes, Judge.
Division IV: Mark D. Pfeiffer, Chief Judge, and Alok Ahuja
and Edward R. Ardini, Jr.
Pfeiffer, Chief Judge.
State of Missouri ("State") appeals the judgment of
the Circuit Court of Randolph
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.
October 30, 2016, law enforcement received a call from a
minor, J.Z.,  reporting that her debit card had been
stolen from her residence. 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.
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." 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.
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.
and Point III on Appeal
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.
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
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).
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
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 ...