State v. Burns

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: State v. Burns, 994 S.W.2d 941 (Mo. 1999)
• Decision Date: 29 June 1999
• Docket Number: 81416
• Parties: This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. State of Missouri, Appellant, v. Dennis M. Burns, Respondent. Case Number: 81416 Supreme Court of Missouri Handdown Date: 0

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court

State of Missouri, Appellant v Dennis M. Burns, Respondent

Case Number: 81416

Supreme Court of Missouri

Handdown Date: 06/29/99

Appeal From: Circuit Court of Buchanan County, Hon. Patrick K. Robb

Counsel for Appellant: Hershel D. Shepherd and Dwight K. Scoggins, Jr.

Counsel for Respondent: T. Jefferson Stephens

Opinion Summary:

Defendant Dennis Burns was charged with delivery of cocaine, a class B felony. The state failed to comply with a pre-trial order to produce a confidential informant who was a material witness for an interview by defense counsel. In response to defendant's motion, the trial judge dismissed the case without prejudice. The state appealed.

APPEAL DISMISSED.

Court en banc holds:

This Court is without jurisdiction over the appeal. The trial court's dismissal was neither a final judgment nor a species of interlocutory order that may be appealed. Section 547.200, RSMo Supp.1997. The right to appeal is purely statutory. The dismissal was not one of the four types of interlocutory orders that can be appealed under section 547.200.1. Section 547.200.2 does not establish the state's right to appeal, absent a final judgment, which is required before the state may appeal a matter not in section 547.200.1.

A rare exception that the state relied on is inapplicable, because nothing suggests double jeopardy has attached or the statute of limitations has run to preclude re-filing.

Pretrial discovery orders are generally reviewable by writ.

Opinion Author: John C. Holstein, Judge

Opinion Vote: APPEAL DISMISSED. All concur.

Opinion:

On September 18, 1997, Dennis Burns ("defendant") was charged by information with the class B felony of delivery of cocaine, in violation of section 195.211, RSMo 1994. The state failed to comply with a pre-trial order to produce a confidential informant who was a material witness in the case for an interview by defense counsel. In response, the trial judge sustained the defendant's motion to dismiss on the morning trial was to commence. The trial judge indicated his order of dismissal was without prejudice. The state filed a notice of appeal. Following opinion by the Missouri Court of Appeals, Western District, this Court granted transfer.

Defendant claims the court of appeals and, after transfer, this Court are without jurisdiction because the trial court's dismissal of his case was neither a final judgment nor a species of interlocutory order that may be appealed. Section 547.200, RSMo Supp. 1997. The defendant is correct, and the appeal is dismissed.

The right to appeal is purely statutory. State v. Troupe, 891 S.W.2d 808, 813 n.5 (Mo. banc 1995) (citing State ex rel. Garnholz v. La Driere, 299 S.W.2d 512, 515 (Mo. banc 1957)). Section 547.200, RSMo Supp. 1997, provides:

1. An appeal may be taken by the state through the prosecuting or

circuit attorney from any order or judgment the substantive effect

of which results in:

(1) Quashing an arrest warrant;

(2) A determination by the court that the accused lacks the

mental capacity or fitness to proceed to trial, pursuant to

section 552.020, RSMo;

(3) Suppressing evidence; or

(4) Suppressing a confession or admission.

2. The state, in any criminal prosecution, shall be allowed an appeal in the casesand under the circumstances mentioned in section 547.210 [cases where the

indictment or information has been held insufficient] and 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 supreme court shall issue

rules governing such appeals. . .

5. The supreme court shall issue appropriate rules to facilitate the disposition of

such appeals, balancing the right of the state to review the correctness of pretrial

decisions of a trial court against the rights of the defendant to a speedy trial,

including measures to facilitate these appeals by shortening of the time to file

appellant's brief under supreme court rule 30.06(K) to ten days, and eliminations

of motions for rehearing or retransfer under supreme court rules 30.26 and 30.27.

This Court has issued rules in accordance with section 547.200. Rule 30.01 governs appeals from final judgments. Rule 30.02 governs interlocutory appeals. The parties agree that the trial court's dismissal of this matter is not one of the four types of interlocutory orders enumerated in section 547.200.1 from which an appeal is permitted. As for those appeals authorized by section 547.200.2, Rule 30.01 provides that parties may appeal in a criminal case only "[a]fter the rendition of a final judgment." A trial court's judgment is final for purposes of conferring appellate jurisdiction if the judgment "disposes of all disputed issues in the case and leaves nothing for future adjudication." Williams v. State, 954 S.W.2d 710, 711 (Mo. App. 1997). The most common instance in which a judgment is final in a criminal case is when sentence is entered. State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994); State ex rel. Wagner v. Ruddy, 582 S.W.2d 692, 693 (Mo. banc 1979). Additionally in a criminal case, a judgment is final when 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, for example, when an information is dismissed because the trial court determines that the offense charged is unconstitutional. See State v. Lee Mechanical Contractors, Inc., 938 S.W.2d 269, 271 (Mo. banc 1997).

The state argues that section 547.200.2, which allows the state to appeal "in all criminal cases except where the possible outcome of such appeal could result in double jeopardy for defendant," establishes its right to appeal. After all, the state contends, reviewing the merits of its appeal in the present case would not violate defendant's right to be free from double jeopardy. Section 547.200.5 directs this Court to "issue appropriate rules to facilitate the disposition of such appeals, balancing the right of the state to review the correctness of pretrial decisions of the trial court against the right of the defendant to a speedy trial." As discussed above, this Court's rules provide that a final judgment is required before the state may appeal a matter not enumerated in section 547.200.1. To read section 547.200.2 as the state asks would negate the important limitation of subsection 5 and would render meaningless the specific cases enumerated in subsection 1.

This conclusion is consistent with precedent. In State v. Willis, the court of appeals applied the criminal final judgment rule in a case of dismissal without prejudice. 677 S.W.2d 416 (Mo. App. 1984). The court noted, "In the case at bar, there has been no finding of guilt, let alone imposition of sentence." Id. Such orders are interlocutory. Id. at 417, (citing United States v. McDonald, 435 U.S. 850 (1978), and United States v. Grabinsky, 674 F.2d 677, 680 (8th Cir. 1982)), cert. denied, 459 U.S. 829 (1982); see also State v. Lynch, 679 S.W.2d 858, 862 (Mo. banc 1984) (suspended imposition of sentence is not a final, appealable judgment); State v. Drake, 906 S.W.2d 787, 788 (Mo. App. 1995).

The state also cites a narrow and rarely relied on exception to the general rule that a dismissal without prejudice is unappealable. Several cases have noted that notwithstanding a trial court's declaration that a dismissal is without prejudice, a judgment is final and an appeal will lie where 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." Fitzpatrick v. Hannibal Regional Hospital, 922 S.W.2d 840, 842 (Mo. App. 1996); see also Mahoney v. Doerhoff...