State v. Bibb
| Decision Date | 26 March 1996 |
| Docket Number | 69367,Nos. 69324,s. 69324 |
| Citation | 922 S.W.2d 798 |
| Parties | STATE of Missouri, Plaintiff/Appellant, v. Terry BIBB, Defendant/Respondent. |
| Court | Missouri Court of Appeals |
Virginia H. Wasiuk, Asst. Cir. Atty., St. Louis, for appellant.
Deborah B. Wafer, Dist. Defender, Raymund J. Capelovitch, Mary Ann Caradonna, Asst. Public Defenders, St. Louis, for respondent.
RHODES RUSSELL, Judge.
This is an appeal by the State of Missouri under § 547.200 RSMo 1994, 1 from an order of the trial court granting Defendant Terry Bibb's motion to suppress evidence and ordering him discharged. A second notice of appeal was filed seeking review of a nunc pro tunc order issued by the trial court after the sustention of the motion to suppress. The appeals have been consolidated and Defendant's motion to dismiss is taken with the case. We reverse the grant of the suppression motion and the discharge of Defendant and grant Defendant's motion to dismiss in part.
On April 21, 1995, at approximately twelve noon, Officers Jefferson and Clemmons, along with two other unidentified officers, were monitoring the 3900 block of Garfield. The area was under surveillance due to many citizen complaints about drug sales. The officers, sitting in an unmarked car, observed Defendant and another individual in the middle of the street. Officers Jefferson and Clemmons saw Defendant drop two off-white chunks to the ground, pick the items up and walk toward a van owned by Defendant. Upon reaching the van, the officers observed Defendant throw something inside the vehicle with the same hand used to pick the items up off the ground. Officer Jefferson detained the other individual, while Officer Clemmons walked toward Defendant and the van. Officer Clemmons testified to looking into the driver's side window of the van and seeing two off-white chunks, one on the driver's side and the other on the floorboard of the van. Officer Clemmons opened the door to the vehicle and seized the items, believing them to be two chunks of crack cocaine. Officer Clemmons read Defendant his rights and arrested him without protest. Later laboratory results indicated the items confiscated to be .22 grams of cocaine base.
Defendant was charged by indictment with one count of possession of a controlled substance--cocaine base in violation of § 195.202. Defendant filed a motion to suppress physical evidence, namely, the two chunks of cocaine base seized by the police from Defendant's vehicle. Defendant's motion was argued to the court on October 11, 1995. On October 12, 1995, the court entered its order sustaining Defendant's motion to suppress and ordering Defendant be discharged.
On October 25, 1995, the state filed its first notice of appeal. Five days later, on October 30, 1995, the trial court issued a nunc pro tunc order "correcting" its previous order by deleting the language that Defendant be discharged. On November 2, 1995, the state filed another notice of appeal, appealing the orders of October 12th and 30th. Shortly thereafter, on November 6, 1995, counsel for Defendant filed a motion to withdraw and request for the appointment of counsel, which was granted.
The state raises three issues on appeal. The first issue challenges the order sustaining Defendant's motion to suppress. The second point contests the jurisdiction of the trial court to enter the nunc pro tunc order. Lastly, the third point questions the order allowing the withdrawal of defense counsel. Defendant has filed with this court a separate motion to dismiss points one and three. After reviewing Defendant's motion to dismiss and pertinent authority, we grant the motion only with respect to point three.
Point one involves the merits of granting Defendant's motion to suppress by order of October 12, 1995. Before addressing the substance of the suppression motion, we must first determine whether we have jurisdiction to entertain this appeal. Defendant argues we should dismiss this point because the state did not timely file its notice of appeal. Under § 547.200.4, an interlocutory appeal of an order suppressing evidence must be filed within five days of the entry of the order of the trial court. Because the state filed its notice of appeal on October 25, 1995, more than five days after the order was entered, counsel for Defendant asserts the appeal was untimely.
Unique to this case is the order appealed from and its practical effect. The order dated October 12, 1995 granted Defendant's motion to suppress the evidence seized and ordered the Defendant discharged, even though no nolle prosequi or formal dismissal had been tendered. The discharge of Defendant effectively terminated the case and withdrew jurisdiction from the trial court. The only option available to the state was to request review from the appellate court of both the suppression motion and the discharge. As such, the state's appeal was not interlocutory in nature, but more in the form of a judgment appealable under § 547.200.2. Section 547.200.2 gives the state the authority 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." The state may therefore appeal in those circumstances where double jeopardy would not result. The United States Supreme Court has held that jeopardy does not attach until the defendant has been put to trial before the trier of fact, whether the trier of fact be a jury or a judge. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). Counsel for Defendant equates the grant of the suppression motion and accompanying discharge of Defendant as an acquittal, thereby causing jeopardy to attach and prohibiting the state from seeking an appeal. We do not agree. Courts have recognized that jeopardy does not attach unless a question of the defendant's guilt or innocence is involved. Serfass, 420 U.S. at 391-92, 95 S.Ct. at 1064-65; State v. Casaretto, 818 S.W.2d 313, 315-16 (Mo.App.1991). "Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy." Serfass, 420 U.S. at 391-92, 95 S.Ct. at 1064.
We find the circumstances of this case more analogous to a dismissal of an indictment or similar in effect to other pretrial dismissals. Jeopardy does not attach when the court's dismissal is based on a pretrial matter and the state has the right to retry the defendant. See State v. Reed, 770 S.W.2d 517, 520 (Mo.App.1989), appeal after remand, 815 S.W.2d 474 (Mo.App.1991). Here, since the question of Defendant's guilt was not determined, the risk of double jeopardy is not implicated and the state is free to appeal pursuant to § 547.200.2. See, e.g., State v. Dicus, 858 S.W.2d 757, 759 (Mo.App.1993) (); State v. Brown, 722 S.W.2d 613, 616 (Mo.App.1986) ().
Having determined the state can pursue its first appeal under § 547.200.2, the next issue in contention is the timeliness of the state's filing. Subparagraph 2 of § 547.200 gives the state the option to appeal in certain criminal cases and further states that the supreme court "shall issue rules governing such appeals," however, a thorough review of the rules provides no guidance for appeals under that paragraph. The five-day filing requirement of § 547.200.4, noted above, is inapplicable to appeals under § 547.200.2 and, to date, no specific rule has been adopted addressing state appeals pursuant to § 547.200.2. This void in the rules was pointed out by our colleagues in the Western District in State v. Brown, 722 S.W.2d 613, 617 (Mo.App.1986). In Brown, the state sought to appeal the trial court's order dismissing the charges filed against the defendant on grounds of violating his rights to a speedy trial and discharging the defendant. The state filed the appeal thirty days after the trial court dismissed the charges. The court held that due to the gap in the rules, the parties had no guidance as to when the order became final for purposes of appeal. The court urged the supreme court to implement rules to govern state appeals under § 547.200.2 and, until such rules were promulgated, the appellate court would not decide the issue adversely to a party who had no frame of reference on the issue. Id. at 618.
We agree with the Brown court's reasoning and rule in favor of the state. Of course, if the appeal consisted only of the motion to suppress, then the appeal would be interlocutory and the state would have had to file its notice within five days of the entry of the order. § 547.200.4. When the state files an interlocutory appeal, the five-day filing period will be strictly enforced absent some rule by the supreme court allowing for late filing. State v. Beaver, 697 S.W.2d 573, 574-75 (Mo.App.1985). In circumstances like the present case where the state's appeal is not interlocutory, the rules remain silent. We therefore will not penalize the state for filing its notice of appeal on October 25, 1995 and will address the merits of its point one.
When reviewing a trial court's order suppressing evidence, the facts and reasonable inferences arising therefrom are to be considered favorably to the order challenged on appeal. State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985), overruled in part by State v. Mease, 842 S.W.2d 98, 106 (Mo. banc 1992). We will reverse the trial court's judgment only if it is clearly erroneous. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990).
The state asserts the police lawfully discovered the cocaine base pursuant to the plain view doctrine during a valid investigative...
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