State v. Smothers

• Decision Date: 17 November 2009
• Docket Number: No. WD 70361.,WD 70361.
• Citation: 297 S.W.3d 626
• Parties: STATE of Missouri, Appellant, v. Robert Ryan SMOTHERS, Respondent.
• Court: Missouri Court of Appeals

297 S.W.3d 626

STATE of Missouri, Appellant, v. Robert Ryan SMOTHERS, Respondent.

No. WD 70361.

Missouri Court of Appeals, Western District.

November 17, 2009.

Stephanie C. Luntsford, Assistant Prosecuring Attorney, Moberly, MO, for Appellant.

Margaret M. Johnston, Assistant State Public Defender, Columbia, MO, for Respondent.

Before Division III: THOMAS H. NEWTON, Chief Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.

KAREN KING MITCHELL, Judge.

Respondent, Robert Smothers (Smothers), was charged with one count of forgery and one count of possession of a forging instrumentality. The circuit court found that the evidence contained in the State's information and probable cause statement did not meet the statutory requirements of forgery as a matter of law. Accordingly, the circuit court granted Smothers's motion to dismiss. Because we find that the State's allegations, if proved, could meet the statutory elements of forgery, we reverse.

I. Facts and Procedural Background

Smothers was subject to a valid, court-ordered drug test as a condition of his bond in an unrelated matter. The circuit court ordered a police officer to administer the drug test to Smothers. The police officer observed what appeared to be Smothers urinating into a sample jar; however, the police officer became suspicious when he heard a snapping noise and observed Smothers acting "very nervous and shaky." Smothers handed the police officer the urine sample. The police officer told Smothers that he had reason to believe that the urine sample was fake. Smothers then allegedly admitted to giving a false urine sample and to using a Whizzinator device and dehydrated urine to do so.¹

The State filed a felony information charging Smothers with two counts: violation of section 570.090² (forgery) and violation of section 570.100 (possession of a forging instrumentality). In Count I of the felony information, the State charged that Smothers, "with the purpose to defraud, used and/or transferred as genuine a urine sample, knowing that it had been made or altered so that it purported to have a genuineness or ownership that it did not possess." In Count II of the felony information, the State charged that Smothers, "with the purpose of committing forgery, possessed a whizzenater [sic] used for making a false urine sample."

Smothers filed a motion to dismiss the charges, arguing that the forgery statute did not apply because the urine sample did not qualify as "any writing or other thing including receipts and universal product codes," as required by the statute. § 570.090.1(3).

The circuit court held a hearing on Smothers's motion to dismiss, and, on November 13, 2008, it entered a "Judgment of Dismissal," granting the motion. In its judgment, the circuit court found that section 570.090 did not apply because the State's evidence, if proved, would not establish that Smothers made or altered anything. In addition, the circuit court found that section 570.090 did not apply because Smothers lacked the purpose to defraud in that he did not intend to deprive the State of anything. The circuit court's judgment indicates that it was entered "without prejudice." The State appeals pursuant to section 547.200.

II. Jurisdiction

Smothers argues that this court lacks jurisdiction because the judgment appealed from was not final in that it was denominated "without prejudice." In order to have jurisdiction over this appeal, there must be a final judgment. In addition, we must find that the appeal does not place Smothers in double jeopardy. We hold that the judgment below was a final judgment and that this appeal does not place Smothers in double jeopardy.

1. Finality of the Judgment.

The parties agree that jurisdiction lies in this court, if at all, pursuant to section 547.200. Subsection 5 of section 547.200 directs the Supreme Court of Missouri to issue rules to facilitate the disposition of appeals made pursuant to that section. Thus, appeals made pursuant to section 547.200 must conform to Missouri Supreme Court Rules 30.01 and 30.02, which govern appeals in criminal cases. State v. Burns, 994 S.W.2d 941, 942 (Mo. banc 1999).

Rule 30.01 provides that, in a criminal case, a party shall be entitled to an appeal after the rendition of final judgment. Rule 30.02 provides the procedure for interlocutory appeals when such appeals are "permitted by law." Section 547.200.1 lists circumstances when the State is permitted by law to pursue interlocutory appeals: when an order or judgment (1) quashes the arrest warrant; (2) finds that the accused lacks the capacity or fitness for trial; (3) suppresses evidence; or (4) suppresses a confession or an admission.

If a judgment does not qualify under the circumstances listed in section 547.200.1, then, in order for appellate jurisdiction to be available to the State in a criminal case, the judgment the State appeals must be final. Burns, 994 S.W.2d at 942-43; § 547.200.2. The judgment in this case did not quash an arrest warrant, make a finding of incapacity or unfitness, suppress evidence, or suppress a confession or admission, see § 547.200.1. Therefore, appellate jurisdiction does not exist unless the circuit court's order of dismissal was a final judgment. Burns, 994 S.W.2d at 942-43; Rule 30.01.

A dismissal with prejudice is a final order, but a dismissal without prejudice is not a final order unless 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.'" Burns, 994 S.W.2d at 943 (quoting Fitzpatrick v. Hannibal Reg'l Hosp., 922 S.W.2d 840, 842 (Mo.App. E.D.1996)). "The exception appears to be limited to those rare situations in which a dismissal without prejudice is based on an assertedly deficient claim ... or where the basis of the dismissal without prejudice places a substantial cloud on a party's right to further litigate an issue or claim...." Id. If the judgment precludes the litigant from maintaining the action in the forum chosen, it is a final judgment, irrespective of whether it is denominated "with prejudice" or "without prejudice." Cramer v. Smoot, 291 S.W.3d 337, 339 (Mo.App. S.D.2009). "If the dismissal was such that a refiling of the petition at that time would be a futile act, then the order of dismissal is appealable." Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo.App. E.D.1985). "[W]hen the effect of the order is to dismiss the plaintiff's action and not merely the pleading, then the judgment is final and appealable." Adams v. Inman, 892 S.W.2d 651, 653 (Mo.App. W.D.1994).

Applying these exceptions, dismissals without prejudice have been held appealable in such cases where the dismissal was based on statutes of limitations, theories of estoppel, a plaintiff's lack of standing, failure of the petition to state a claim where the plaintiff chose not to plead further, failure of a plaintiff in a medical malpractice action to file the health care provider affidavit and the plaintiff's claims not being covered by the statute upon which the petition was based.

Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo.App. E.D.2000).

Here, although the circuit court entered a dismissal "without prejudice," we hold that the judgment had the practical effect of terminating the litigation in the form it was cast,³ and thus the judgment was final and appealable.

The circuit court ruled that, under the facts submitted, Smothers cannot be found guilty of forgery. The circuit court's ruling was based on its belief that the State's felony information was "assertedly deficient"; moreover, the ruling "place[d] a substantial cloud on [the State's] right to further litigate an issue or claim." See Burns, 994 S.W.2d at 943. The judgment stated that it was "without prejudice," meaning that the State could refile the charges if it so desired. Nevertheless, refiling the same charges, based on sections 570.090 (forgery) and 570.100 (possession of a forging instrumentality), would have been a "futile act," see Nicholson, 685 S.W.2d at 589, given that the circuit court had already ruled that the facts submitted cannot, as a matter of law, fulfill the elements of forgery. It would serve no practical purpose to refile the forgery charges in the circuit court only to have the court confirm its previous ruling and dismiss the matter with prejudice.

Moreover, this case is analogous to civil cases where the circuit court dismissed the petition "without prejudice" due to a failure to state a claim upon which relief could be granted, see Hasemeier v. Smith, 361 S.W.2d 697, 699 (Mo. banc 1962), or failure to state facts that would trigger the application of a statute. See Carothers v. Carothers, 977 S.W.2d 287, 289 (Mo.App. W.D. 1998) ("Since the court held that plaintiff's claims were not covered by the statute, the judgment had the practical effect of terminating the litigation brought under the statute."). According to the circuit court, the State's felony complaint did not allege facts that would trigger the application of section 570.090 (forgery). As such, the circuit court's judgment "had the practical effect of terminating the litigation brought under the statute[s]," and the judgment was therefore final and appealable. See id.

2. Double Jeopardy.

In addition to finding a final judgment, we must also find that the appeal does not place Smothers in double jeopardy. § 547.200.2; Burns, 994 S.W.2d at 942-43. In a court-tried case, jeopardy attaches when the court begins to hear evidence. State v. Jarvis, 809 S.W.2d, 460, 461 (Mo.App. E.D.1991). Moreover, jeopardy cannot attach until the circuit court holds a proceeding that could result in finding the accused guilty of the subject charges. State v. Coor, 740 S.W.2d 350, 354-55 (Mo.App. S.D.1987). If the proceeding is designed to hear the accused's defenses or objections before trial, and no determination of factual guilt or innocence is made or attempted, then jeopardy does...