STATE OF MISSOURI,                               )
                                                 )
        Plaintiff-Appellant,                     )
                                                 )
vs.                                              )       No. SD33100
                                                 )
TATUM CLARK MCMILLIAN,                           )       Filed: January 29, 2015
                                                 )
        Defendant-Respondent.                    )

          APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY

                 Honorable Michael J. Ligons, Associate Circuit Judge

DISMISSED

        In this case, the State appeals from the trial court's order dismissing a

criminal complaint prior to the preliminary hearing. We dismiss the appeal for

lack of appellate jurisdiction.

                                Procedural Background

        Tatum Clark McMillian ("Defendant") was charged with one count of

felony stealing under Section 570.030.1 The complaint alleged Defendant


1As relevant to the present case, that section provides that:
        1.       A person commits the crime of stealing if he or she appropriates property
                 or services of another with the purpose to deprive him or her thereof,
                 either without his or her consent or by means of deceit or coercion.
        ...
        3.       Notwithstanding any other provision of law, any offense in which the
                 value of property or services is an element is a class C felony if:
                 (1)      The value of the property or services appropriated is five
                          hundred dollars or more but less than twenty-five thousand
                          dollars[.]
§ 570.030. All statutory references are to RSMo Cum. Supp. (2009).
"appropriated unemployment benefits of a value of at least five hundred dollars

. . . from the Missouri Division of Employment Security with the purpose to

deprive it thereof by deceit in that [Defendant] represented to the Missouri

Division of Employment Security that he was earning less wages from his

employers than he was actually receiving[.]"

         On the morning of the preliminary hearing, Defendant filed a motion to

dismiss. In support of that motion, Defendant argued the filing of a felony

stealing charge was improper for three reasons: (1) it violated Defendant's right

to be free from double jeopardy; (2) it unlawfully increased the range of

punishment for Section 288.3802 offenses beyond what the legislature intended;

and (3) the maxim of statutory construction which posits that a more specific

statute governs over a more general statute required the State to charge

Defendant under Section 288.380, the misdemeanor charge, rather than Section

570.030, the felony charge.

         The docket entry regarding the events on the day the preliminary hearing

was scheduled to take place stated the hearing was "Continued/Rescheduled."

Instead, the court considered Defendant's motion to dismiss and allowed the

2
 As relevant to the present case, that section provides as follows:
        3.        No person shall make a false statement or representation knowing it to be false
                  or knowingly fail to disclose a material fact, to obtain or increase any benefit or
                  other payment pursuant to this chapter, or under an employment security law of
                  any other state or of the federal government either for himself or herself or for
                  any other person.
        ...
        7.        Any person who shall willfully violate any provision of this chapter, or of an
                  employment security law of any other state or of the federal government or any
                  rule or regulation, the observance of which is required under the terms of any
                  one of such laws, shall upon conviction be deemed guilty of a misdemeanor and
                  shall be punished by a fine of not less than fifty dollars nor more than one
                  thousand dollars, or by imprisonment in the county jail for not more than six
                  months, or by both such fine and imprisonment, and each such violation or each
                  day such violation continues shall be deemed to be a separate offense.
§ 288.380.
                                                      2
State 20 days to file suggestions in opposition. In those suggestions the State

argued (1) there was no double jeopardy violation because the State filed only one

charge and (2) the State had the power to choose which criminal charge to file

based on the doctrine of prosecutorial discretion. The trial court dismissed the

complaint without stating the grounds for that decision. The State appeals.

                                            Discussion

          Before addressing the State's arguments, we must first examine

Defendant's argument that we lack jurisdiction because the trial court's dismissal

order was not a final judgment. We agree.

          Under Section 547.200.2, RSMo (2000), and Rule 30.01(a),3 a final

judgment is a prerequisite to appellate review in a criminal case. See State v.

Burns, 994 S.W.2d 941, 942 (Mo. banc 1999). Generally speaking, a dismissal

without prejudice is not a final judgment. Id. at 943. Additionally, it is well

settled that "[t]he state cannot appeal a dismissal at a preliminary hearing."

State v. Kiesau, 794 S.W.2d 309, 312 (Mo. App. S.D. 1990) (quoting State v.

Thomas, 529 S.W.2d 379, 382 (Mo. 1975)).

          In the present case, the trial court dismissed the case, without prejudice, at

the preliminary hearing stage. Consequently, there was no final judgment, and

we lack jurisdiction to consider this case on the merits.

          In support of its argument to the contrary, the State relies on State v.

Smothers, 297 S.W.3d 626 (Mo. App. W.D. 2009). This reliance is misplaced.

Smothers does not speak to the issue presented in the present case because

Smothers involved the dismissal of a felony information. Id. at 629. That is,


3   All rule references are to Missouri Court Rules (2014).
                                                   3
the dismissal did not occur at the preliminary hearing stage, but after the

preliminary hearing stage.

       Although there was no final judgment in the case, our decision does not

leave the State without remedy. "The general rule on the refilling of a complaint,

after a finding of no probable cause, does not contemplate the presentation of

evidence to the same judge a second time." State ex rel. Brown v. Duggins,

601 S.W.2d 11, 13 (Mo. banc 1980). Thus, if the State files another complaint

regarding the facts giving rise to this case, the judge who dismissed the first

complaint must recuse.

                                     Decision

       The State's appeal is dismissed.


MARY W. SHEFFIELD, P.J. - OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. - CONCURS

GARY W. LYNCH, J. - CONCURS




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