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State v. Thompson

Court of Appeals of Missouri, Western District, Special Division

April 23, 2019

STATE OF MISSOURI, Appellant,
v.
DYMON D. THOMPSON, Respondent.

          Appeal from the Circuit Court of Jackson County, Missouri The Honorable Patrick W. Campbell, Judge

          Before: Edward R. Ardini, Jr., Presiding Judge, and Mark D. Pfeiffer and Gary D. Witt, Judges

          MARK D. PFEIFFER, JUDGE

         The State of Missouri ("State") appeals from the judgment of the Circuit Court of Jackson County, Missouri ("trial court"), dismissing one of two counts of the State's information in lieu of indictment against Mr. Dymon D. Thompson ("Thompson"). We reverse and remand with directions.

         Facts and Procedural History

         The State filed a two-count information in lieu of indictment against Thompson, charging him with one count of the class C felony of possession of a controlled substance in violation of section 195.202[1] for being in possession of cocaine and one count of the class D felony of unlawful use of weapon in violation of section 571.030.1(11) for being in possession of a Glock Model 27 handgun, while also being in possession of cocaine, a controlled substance. Thompson moved to dismiss one of the counts, arguing that the possession of a controlled substance was a lesser-included offense of unlawful use of a weapon and, therefore, was barred by double jeopardy. The trial court granted Thompson's motion and directed the State to elect which count would be dismissed.

         The State filed a motion objecting to the trial court's order, requesting that the trial court vacate its earlier order and allow it to proceed upon both counts or amend the order and exercise the trial court's power to designate which count of the information would be dismissed. Thereafter, the trial court entered its judgment. The trial court found that every element of the possession of a controlled substance charge was found in the unlawful use of a weapon charge, and therefore, the Double Jeopardy Clause was "presumably violated." The trial court further found that the possession of a controlled substance charge was a lesser-included offense of the unlawful use of a weapon charge. Consequently, the trial court dismissed the possession of a controlled substance charge.

         The State appealed.

         Jurisdiction

         Thompson has moved this court to dismiss the State's appeal for lack of jurisdiction. He argues that the State's interlocutory appeal is not authorized by the express provisions of section 547.200.1 and the dismissal is not a final judgment.

         In opposition, the State argues that the dismissal on constitutional grounds of one count of a multi-count indictment is a final judgment from which it may appeal. The State also contends that the judgment is final and appealable because it forecloses prosecution on count I (possession of a controlled substance), prevents the State from proceeding with the litigation as it was cast, and places a substantial cloud on the State's right to prosecute count I in the future.

         Although there appears to be some confusion "as to whether dismissal of some, but not all, counts in a multi-count information or indictment constitutes a final judgment for purposes of a criminal appeal," State v. Lovett, 427 S.W.3d 897, 901 (Mo. App. W.D. 2014); State v. Wright, 431 S.W.3d 526, 532 (Mo. App. W.D. 2014), our resolution of this jurisdictional challenge is governed by the Missouri Supreme Court's decision in State v. Honeycutt, 421 S.W.3d 410 (Mo. banc 2013). In Honeycutt, the State charged the defendant with two counts of stealing a firearm and one count of unlawful possession of a firearm. Id. at 413. The trial court sustained the defendant's motion to dismiss the third count on constitutional grounds. Id. The State appealed. The Missouri Supreme Court concluded that the trial court's judgment granting the defendant's motion to dismiss one count of a multi-count indictment was "a final judgment from which the State may appeal," because even though the dismissal was without prejudice, it was based on a constitutional claim that "had the practical effect of terminating the litigation." Id. at 413, 414 n.4.

         The factual and procedural scenarios here and in Honeycutt are virtually identical. Here, the State charged Thompson with one count of possession of a controlled substance and one count of unlawful use of a weapon while also being in possession of a controlled substance. Thompson moved to dismiss one of the counts. The trial court dismissed the possession count, finding that because every element of the possession charge was found in the unlawful use of a weapon charge, the Double Jeopardy Clause was "presumably violated." Because "Missouri appellate courts are constitutionally bound to follow the last controlling decision of Missouri's Supreme Court," State v. Miller,536 S.W.3d 374, 379 (Mo. App. W.D. ...


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