             SUPREME COURT OF MISSOURI
                                          en banc
STATE OF MISSOURI ex rel.                       )            Opinion issued March 19, 2019
WILLIS MCCREE,                                  )
                                                )
               Relator,                         )
                                                )
v.                                              )           No. SC97186
                                                )
THE HONORABLE                                   )
WESLEY DALTON,                                  )
                                                )
               Respondent.                      )


                      ORIGINAL PROCEEDING IN MANDAMUS

       Willis McCree seeks a writ of mandamus to compel the circuit court to dismiss

with prejudice McCree’s charge of driving while intoxicated. McCree filed a motion

under section 577.037.2,1 arguing that because the chemical analysis demonstrated his

blood alcohol concentration was under .08 percent, and the State did not present evidence




1
  McCree improperly cites section 577.037.5, RSMo Supp. 2012. While this was the statute in
effect when he was arrested and charged, it was not the statute in effect in August 2017, when he
filed his motion. In August 2017, section 577.037.2, RSMo 2016, was the applicable statute.
“[R]ules of evidence govern the procedure for admission of evidence and so the rules in effect at
trial are followed.” Stiers v. Dir. of Revenue, 477 S.W.3d 611, 618 (Mo. banc 2016). The two
versions of the statute are similar, but their language and structure differ slightly. Because
section 577.037 defines the procedure for the admission of breath test results, section 577.037.2,
RSMo 2016, governs. All statutory references are to RSMo 2016 unless otherwise specified.
to prove the dismissal was unwarranted, the charge should be dismissed. The circuit

court overruled McCree’s motion, and the matter remains set for trial.

       McCree has not demonstrated a clear and unequivocal right to the dismissal of his

charge because the plain language of section 577.037.2 does not require a pretrial hearing

or pretrial determination on the motion. Further, under this Court’s rules, the circuit

court has discretion to order that a hearing and determination on the motion be deferred

until trial. The circuit court’s overruling of the motion effectively deferred the matter

until trial, and McCree can seek relief on appeal. This Court quashes its preliminary writ

of mandamus.

                                       Background

       McCree parked his vehicle on the side of the road in Warren County after it broke

down. A sheriff’s deputy arrived on the scene and asked McCree to exit the vehicle. As

he did so, the deputy smelled a heavy odor of intoxicants and observed that McCree had

watery eyes and difficulty standing. McCree admitted to the deputy he had consumed

three to four beers, and he staggered as he spoke.

       The deputy arrested McCree for driving while revoked and transported him to the

county jail, where he was arrested for driving while intoxicated. He refused to complete

field sobriety tests or a chemical test of his breath. The deputy obtained a search warrant

to determine McCree’s blood alcohol concentration. McCree provided two blood

samples revealing alcohol concentration levels of .052 percent and .039 percent.

       The State charged McCree by information with one count of the class B felony of

driving while intoxicated under section 577.010, RSMo Supp. 2014, and one count of

                                              2
driving while revoked under section 302.321, RSMo Supp. 2014. The matter was set for

jury trial. McCree filed a motion under section 577.037.2, arguing that because the

chemical analysis demonstrated his blood alcohol concentration was less than .08

percent, the charge should be dismissed because the State failed to present evidence to

prove dismissal unwarranted. The circuit court held a hearing on the motion. Neither the

State nor McCree called any witnesses or presented any evidence. The circuit court

overruled the motion, and the matter remains set for trial on March 21, 2019.

       McCree filed a petition for a writ of mandamus in the court of appeals, seeking to

compel the circuit court to dismiss with prejudice the charge of driving while intoxicated.

The court of appeals denied the petition. This Court issued a preliminary writ. McCree

now seeks a permanent writ of mandamus from this Court.

                          Jurisdiction and Standard of Review

       This Court has the authority to issue and determine original remedial writs. Mo.

Const. art. V, sec. 4. A litigant seeking a writ of mandamus “must allege and prove that

he has a clear, unequivocal, specific right to a thing claimed.” State ex rel. Hewitt v.

Kerr, 461 S.W.3d 798, 805 (Mo. banc 2015) (quoting Furlong Cos., Inc. v. City of

Kansas City, 189 S.W.3d 157, 166 (Mo. banc 2006)). “This right may arise from a

statute that creates a right but does not explicitly provide mandamus as a remedy to

enforce the right.” Id. Ordinarily, mandamus should not be used to control or direct the

circuit court’s exercise of discretionary powers. State ex rel. Mertens v. Brown, 198

S.W.3d 616, 618 (Mo. banc 2006). Mandamus is inappropriate when there is remedy



                                              3
through appeal. Rule 84.22(a); State ex rel. Kauble v. Hartenbach, 216 S.W.3d 158, 159

(Mo. banc 2007).

                                         Analysis

       This case presents the question whether McCree has a clear and unequivocal right

to the pretrial dismissal of his charge of driving while intoxicated when a pretrial hearing

on his section 577.037.2 motion was held and neither he nor the State presented any

evidence at the hearing. McCree argues that under these facts, he has a clear and

unequivocal right to have the charge of driving while intoxicated dismissed.

       Section 577.037.2 states, in pertinent part:

       2. If a chemical analysis of the defendant’s breath, blood, saliva, or urine
       demonstrates there was eight-hundredths of one percent or more by weight
       of alcohol in the person’s blood, this shall be prima facie evidence that the
       person was intoxicated at the time the specimen was taken. If a chemical
       analysis of the defendant’s breath, blood, saliva, or urine demonstrates that
       there was less than eight-hundredths of one percent of alcohol in the
       defendant’s blood, any charge alleging a criminal offense related to the
       operation of a vehicle, vessel, or aircraft while in an intoxicated condition
       shall be dismissed with prejudice unless one or more of the following
       considerations cause the court to find a dismissal unwarranted:

       (1) There is evidence that the chemical analysis is unreliable as evidence of
       the defendant’s intoxication at the time of the alleged violation due to the
       lapse of time between the alleged violation and the obtaining of the
       specimen;

       (2) There is evidence that the defendant was under the influence of a
       controlled substance, or drug, or a combination of either or both with or
       without alcohol; or

       (3) There is substantial evidence of intoxication from physical observations
       of witnesses or admissions of the defendant.

(Emphasis added.).


                                              4
       Although the language in section 577.037.2 indicates what evidence the State must

present to avoid dismissal of the case when a motion is made, it makes no mention of

when the State must present the evidence or at what point the circuit court must rule on

the motion. When interpreting a statute, its clear and unambiguous language must be

given effect, and words cannot be added by implication. State ex rel. Young v. Wood,

254 S.W.3d 871, 873 (Mo. banc 2008). Section 577.037 does not provide for a pretrial

hearing or pretrial determination by the circuit court. Had the legislature intended section

577.037 to require a pretrial hearing or pretrial determination, it could have included this

requirement. 2 The plain language of section 577.037 does not confer a statutory right to a

pretrial hearing or pretrial determination by the circuit court. 3

       Section 577.037 is consistent with this Court’s rules in that neither confers a right

to a pretrial hearing or pretrial determination. Under Rule 24.04(b), a motion raising

defenses or objections “shall be heard and determined before trial on application of the

state or the defendant, unless the court orders that the hearing and determination thereof



2
  For instance, in section 559.115, which governs when an offender may be granted probation,
the legislature is explicit that a hearing is required prior to a circuit court’s denial of an
offender’s probation. Section 577.037 contains no such requirement.
3
  The dissent argues that because no evidence was produced at the hearing the circuit court had a
statutory obligation to dismiss the charge. Slip op. at 5. But the dissent is unable to point to
specific language in section 577.037 requiring the State to produce evidence prior to trial or
conferring a statutory right to a pretrial hearing or pretrial ruling. The dissent also emphasizes
that the legislature’s use of the term “dismissal” rather than “acquittal” in section 577.037.2 is
consequential. Slip op. at 6. But the legislature’s use of the term “dismissal” merely indicates a
ruling on the motion can occur either prior to or during trial. Because section 577.037.2 does not
provide a specific timeframe when a ruling on the motion must be made, it was within the circuit
court’s discretion to defer ruling. The circuit court can reconsider the motion prior to the close
of evidence at trial, and any ruling in the circuit court’s favor would be a “dismissal” and not an
“acquittal.” See Rule 27.07(a).
                                                5
be deferred until the trial.” In other words, Rule 24.04(b)(4) provides the circuit court

with the discretion to defer a hearing and ruling on the motion until trial. Read together,

section 577.037.2 and Rule 24.04(b) do not require that a pretrial hearing occur or that a

pretrial determination by the circuit court be made. The circuit court’s denial of the

motion here effectively deferred such a ruling until trial. 4

       McCree concedes that the circuit court could have expressly reserved ruling on the

motion until trial, as a motion under section 577.037.2 could be heard and determined at

trial without undermining the statute’s purpose. But, according to McCree, “[t]he abuse

of discretion occurred when [the circuit court] held a hearing on McCree’s motion to

dismiss and [overruled] the motion without hearing evidence of an exception.”

       It was in the circuit court’s discretion to overrule the motion, as the ruling was an

interlocutory order, which remains under the control of the circuit court and is subject to

its later review. See Nicholson v. Surrey Vacation Resorts, Inc., 463 S.W.3d 358, 365

(Mo. App. 2015); Woods v. Juvenile Shoe Corp. of Am., 361 S.W.2d 694, 695 (Mo.

1962). A motion that has been ruled upon can be reconsidered. Nicholson, 463 S.W.3d

at 365. McCree’s acknowledgement that the circuit court could have deferred ruling on

the motion until trial but that the circuit court abused its discretion in overruling the




4
  McCree asserts the circuit court was required to dismiss his charge under section 577.037
because the statutory right section 577.037 confers “is comparable to a hearing on a motion to
suppress evidence or statements.” But McCree’s understanding of the law governing motions to
suppress is incorrect. A circuit court can defer until trial its ruling on a motion to suppress
evidence. Rule 24.05 (“Requests that evidence be suppressed shall be raised by motion before
trial; however, the court may in its discretion entertain a motion to suppress evidence at any time
during trial.”)
                                                 6
motion is a distinction without a difference. The circuit court’s ruling on the motion does

not prevent McCree from seeking a reconsideration of the motion.

       McCree relies on State v. Mignone, 411 S.W.3d 361 (Mo. App. 2013), to argue the

circuit court abused its discretion in not dismissing the case after the hearing on the

motion. In Mignone, the State offered testimony of the arresting officer and evidence of

the breath test at the hearing on the motion under section 577.037.5, RSMo Supp. 2012.

411 S.W.3d at 363. Mignone is distinguishable. While the court of appeals held the

circuit court did not clearly err in dismissing the driving while intoxicated charge at the

evidentiary hearing in that “there was no substantial evidence of intoxication,” it did not

expressly hold that a pretrial hearing or pretrial determination is required for every

motion pursuant to section 577.037.2. Id. at 363-65. Indeed, the decision whether to

defer the hearing and determination on the motion is within the circuit court’s discretion.

Rule 24.04(b)(4). Section 577.037.2 does not confer on McCree the right to a pretrial

hearing or pretrial determination on the motion. The circuit court did not abuse its

discretion to defer ruling on the section 577.037.2 motion until trial.

       As there is no clear, unequivocal right to dismiss the charge, a writ is not

appropriate. When the judgment becomes final, if McCree is unsatisfied with the result,

he will have the opportunity to argue on appeal that the State failed to meet its burden

under section 577.037.2. A writ shall not issue when adequate relief can be afforded by

an appeal. Rule 84.22(a).




                                              7
                                         Conclusion

       The circuit court did not abuse its discretion because the plain language of section

577.037.2 does not require a pretrial hearing or pretrial determination on the motion, as

the circuit court’s overruling of the motion effectively deferred the matter until trial.

McCree has not demonstrated a clear and unequivocal right to the dismissal of the

charge, and he can seek relief on appeal. This Court quashes its preliminary writ of

mandamus.




                                                   ______________________________
                                                   Mary R. Russell, Judge


Powell and Wilson, JJ., concur; Breckenridge, J.,
concurs in separate opinion filed; Fischer, C.J.,
dissents in separate opinion; Draper and Stith, JJ.,
concur in opinion of Fischer, C.J.




                                              8
             SUPREME COURT OF MISSOURI
                                        en banc
STATE OF MISSOURI ex rel.                      )
WILLIS MCCREE,                                 )
                                               )
              Relator,                         )
                                               )
v.                                             )          No. SC97186
                                               )
THE HONORABLE                                  )
WESLEY DALTON,                                 )
                                               )
              Respondent.                      )


                                CONCURRING OPINION

       I concur in the result reached by the plurality opinion.     As the plurality opinion

notes, the circuit court’s overruling of Mr. McCree’s motion to dismiss for the alleged

failure to comply with section 577.037.2, RSMo 2016, is an interlocutory order, and any

claim of circuit court error for failure to dismiss is subject to review on appeal.



                                           __________________________________
                                            PATRICIA BRECKENRIDGE, JUDGE
                SUPREME COURT OF MISSOURI
                                              en banc
STATE OF MISSOURI ex rel.                         )
WILLIS MCCREE,                                    )
                                                  )
                         Relator,                 )
                                                  )
v.                                                )      No. SC97186
                                                  )
THE HONORABLE                                     )
WESLEY DALTON,                                    )
                                                  )
                         Respondent.              )

                                     DISSENTING OPINION

          I respectfully dissent. The plurality opinion holds the circuit court did not abuse its

discretion in deferring its ruling on the § 577.037.2 1 motion to dismiss until trial. If that is

what actually occurred, I would not be required to dissent. The facts of this case are not

disputed and, in my view, the law is clear. Section § 577.037.2 2 requires the court to


1
    All statutory references are to RSMo 2016 unless otherwise noted.
2
    Section 577.037.2 provides:
          If a chemical analysis of the defendant's breath, blood, saliva, or urine demonstrates
          there was eight-hundredths of one percent or more by weight of alcohol in the
          person's blood, this shall be prima facie evidence that the person was intoxicated at
          the time the specimen was taken. If a chemical analysis of the defendant's breath,
          blood, saliva, or urine demonstrates that there was less than eight-hundredths of
          one percent of alcohol in the defendant's blood, any charge alleging a criminal
          offense related to the operation of a vehicle, vessel, or aircraft while in an
          intoxicated condition shall be dismissed with prejudice unless one or more of the
          following considerations cause the court to find a dismissal unwarranted:
consider and weigh the sufficiency of the State's evidence when a defendant files a motion

to dismiss pursuant to § 577.037.2 alleging a blood alcohol content below .08 percent.

State v. Mignone, 411 S.W.3d 361, 364 (Mo. App. 2013). McCree filed a motion to dismiss

in accord with this statute and, at the hearing on the motion, the State failed to offer any

evidence and met neither the burden of production nor persuasion required; therefore,

McCree had a right to have the charge of driving while intoxicated dismissed.

                          Factual and Procedural Background

       On April 14, 2016, Willis McCree was arrested for driving while intoxicated. The

arresting deputy conducted no field sobriety tests nor a chemical breath test. After arriving

at Warren County jail, the arresting deputy obtained a search warrant to determine

McCree's blood alcohol concentration. Tests of McCree's blood revealed blood alcohol

concentration levels of .052 percent and .039 percent.

       The State filed an information charging McCree with one count of driving while

intoxicated under § 577.010 and one count of driving while revoked under § 302.321. The

matter was set for jury trial. McCree filed a motion to dismiss the driving while intoxicated

charge pursuant to § 577.037.2. 3


              (1) There is evidence that the chemical analysis is unreliable as evidence of
              the defendant's intoxication at the time of the alleged violation due to the
              lapse of time between the alleged violation and the obtaining of the
              specimen;
              (2) There is evidence that the defendant was under the influence of a
              controlled substance, or drug, or a combination of either or both with or
              without alcohol; or
              (3) There is substantial evidence of intoxication from physical observations
              of witnesses or admissions of the defendant.
3
  McCree cited § 577.037.5 RSMo Supp. 2012, the statute in effect when he was arrested and
charged. The statute was not in effect in August 2017 when the motion to dismiss was filed, but

                                              2
       The circuit court called the motion for hearing on September 5, 2017. The State

presented no testimony nor offered any evidence.               The court overruled the motion,

concluding § 577.037.2 put no burden on the State to adduce evidence prior to trial. This

legal conclusion was contrary to precedent the circuit court was bound to follow. In

Mignone, the court of appeals held:

       The plain language of section 577.037.5 calls for the court to weigh evidence
       and evaluate witness credibility in order to decide whether certain
       “considerations” render dismissal “unwarranted.” Clearly, the statute calls
       upon the trial court to make a judgment about the nature and quality of the
       evidence, because that evidence must “cause the court to find” something.
       Dismissal is the default position, and, although not specifically stated in the
       statute, the clear implication is that the burden of persuasion is on the State
       to come forward with evidence to “cause the court to find a dismissal
       unwarranted.”

411 S.W.3d at 364. McCree then filed a petition for a writ of mandamus in the court of

appeals, seeking to compel a dismissal with prejudice of the driving while intoxicated

charge. The court of appeals denied his petition. This Court issued a preliminary writ, and

McCree now seeks a permanent writ of mandamus from this Court.

                                       Standard of Review

       This Court has the authority to issue and determine original writs. Mo. const. art. V,

§ 4. A writ of mandamus will issue if the relator alleges and proves a "clear, unequivocal,

specific right to a thing claimed." State ex rel. Reg'l Convention v. Burton, 533 S.W.3d




read substantially similar to what is now § 577.037.2. As the title of the statute indicates, § 577.037
governs the procedure for the admission of blood alcohol concentration tests, and, therefore, the
rules in effect at the time the motion was filed are followed. See Stiers v. Dir. of Revenue, 477
S.W.3d 611, 618 (Mo. banc 2016). Nonetheless, the difference between the provisions does not
affect this Court's analysis.

                                                  3
223, 226 (Mo. banc 2017) (internal quotation marks omitted). "No original remedial writ

shall be issued by an appellate court in any case wherein adequate relief can be afforded

by an appeal." Rule 84.22(a).

                                           Analysis

       The plurality opinion offers two separate justifications to support its conclusion

McCree did not demonstrate a clear and unequivocal right to a dismissal of his driving

while intoxicated charge. First, the statute does not expressly provide for a pretrial hearing

or pretrial determination and, therefore, McCree was not entitled to one. Second, the circuit

court exercised its Rule 24.04(b)(4) discretion to defer the hearing and ruling on a motion

to dismiss until trial. However, both are incorrect, and McCree has demonstrated a clear

and unequivocal right have his motion to dismiss sustained.

       The primary rule of statutory interpretation is to give effect to the legislature's intent

as indicated by the plain language of the statute at issue. Ben Hur Steel Worx, LLC v. Dir.

of Revenue, 452 S.W.3d 624, 626 (Mo. banc 2015). A fair reading of § 577.037.2 is that a

motion to dismiss filed pursuant to this statute is expressly intended to operate much like

a summary judgment motion in the civil realm and bring an early resolution to cases when

there is not sufficient competent evidence to proceed to trial. Mignone, 411 S.W.3d at 364.

This not only saves judicial resources, it also promotes early dismissal of criminal charges

when scientifically reliable evidence of intoxication is lacking.

       When the evidence of the breath or blood analysis demonstrates a blood alcohol

concentration in excess of .08 percent – that constitutes prima facie evidence of

intoxication. When the breath or blood analysis demonstrates a blood alcohol less than .08


                                               4
percent, the law requires other indications of intoxication to survive a motion to dismiss

and proceed to trial. Section 577.037.2 expressly provides when the blood alcohol content

is less than .08 percent, any driving while intoxicated charge "shall be dismissed with

prejudice unless one or more of the following considerations cause the court to find a

dismissal unwarranted …" (emphasis added). According to this statute, there are only three

considerations that could cause the court to find dismissal unwarranted:

       (1) There is evidence that the chemical analysis is unreliable as evidence of
       the defendant’s intoxication at the time of the alleged violation due to the
       lapse of time between the alleged violation and the obtaining of the
       specimen; (2) There is evidence that the defendant was under the influence
       of a controlled substance, or drug, or a combination of either or both with or
       without alcohol; or (3) There is substantial evidence of intoxication from
       physical observations of witnesses or admissions of the defendant.

§ 577.037.2(1)-(3) (emphasis added). By their terms, all three considerations require an

evidentiary showing. Id. When no evidence is produced, none of the three considerations

could possibly remove the circuit court's statutory obligation to dismiss the charge.

§ 577.037.2.

       The use of the term "dismissal" in § 577.037.2 indicates a legislative intent for the

statute to be applied at the pretrial stage of criminal proceedings and not, as the plurality

opinion contends, after the State has presented its case at trial. "When the legislature enacts

a statute referring to terms which have had other judicial … meaning attached to them, the

legislature is presumed to have acted with knowledge of that judicial … action." Balloons

Over the Rainbow, Inc. v. Dir. of Revenue, 427 S.W.3d 815, 825-26 (Mo. banc 2014). In

enacting § 577.037.2, the legislature is presumed to have had knowledge of Rule 27.07(a),

reading:


                                              5
         The court on motion of a defendant or of its own motion shall order the entry
         of judgment of acquittal of one or more offenses charged in the indictment
         or information after the evidence on either side is closed if the evidence is
         insufficient to sustain a conviction of such offense or offenses.

(emphasis added). Rule 27.07 requires the court to acquit – not dismiss – any criminal

count if the evidence is insufficient to sustain a conviction after the State has closed its

case. State v. Ward, _ S.W.3d. _ (Mo. banc 2019) (No. SC96696, decided March 19, 2019).

Had the legislature intended for § 577.037.2's mandatory dismissal to be applied after the

State had presented its evidence at trial, the term "acquittal" would have been used in the

statute.

         The legislature's most recent amendment to § 577.037 further reaffirms and ratifies

an intention for § 577.037.2 to require the production of evidence at the pretrial stage of

the proceeding. "In construing a statute, the Court must presume the legislature was aware

of the state of the law at the time of its enactment." Suffian v. Usher, 19 S.W.3d 130, 133

(Mo. banc 2000). Prior to the legislature's 2017 amendment, and at the time Mignone was

decided, the relevant portion of § 577.037 was identical in application to today's statute. 4



4
    Prior to the 2017 amendment, the relevant portion of § 577.037 read:
          Any charge alleging a violation of section 577.010 or 577.012 or any county
          or municipal ordinance prohibiting driving while intoxicated or driving under
          the influence of alcohol shall be dismissed with prejudice if a chemical
          analysis of the defendant's breath, blood, saliva, or urine performed in
          accordance with sections 577.020 to 577.041 and rules promulgated
          thereunder by the state department of health and senior services demonstrate
          that there was less than eight-hundredths of one percent of alcohol in the
          defendant's blood unless one or more of the following considerations cause
          the court to find a dismissal unwarranted:
                 (1) There is evidence that the chemical analysis is unreliable as
                 evidence of the defendant's intoxication at the time of the alleged

                                               6
The legislature made no substantive changes to the relevant portions of § 577.037 in its

amendments, which were made well after the Mignone court held the statute's language

clearly imposed burdens of both production and persuasion on the State prior to trial. 411

S.W.3d at 365.

       In answering the writ petition on behalf of the Honorable Wes Dalton, the State

admitted McCree's blood test revealed blood alcohol content of .052 percent and .039

percent at the time of testing, and that no evidence was adduced at the September 5, 2017

hearing. It is undisputed in this case the circuit court did not weigh: any evidence of the

unreliability of the chemical analysis, whether McCree was under the influence of a

controlled substance or combination of alcohol and a controlled substance, or any

substantial evidence of intoxication based on physical observations of witnesses or

admissions of McCree prior to concluding dismissal was unwarranted. Instead, the circuit

court concluded the State's lack of production of any evidence was not dispositive because

the State had no burden to produce evidence prior to trial. However, the plain language of

§ 577.037.2 and Mignone required the circuit court to dismiss McCree's charge of driving

while intoxicated.




             violation due to the lapse of time between the alleged violation and
             the obtaining of the specimen;
             (2) There is evidence that the defendant was under the influence of a
             controlled substance, or drug, or a combination of either or both with
             or without alcohol; or
             (3) There is substantial evidence of intoxication from physical
             observations of witnesses or admissions of the defendant.
§ 577.037.5 RSMo Supp. 2012.

                                            7
       In addition, the record expressly refutes the plurality opinion's conclusion that the

circuit court deferred its ruling on McCree's motion to dismiss. As the plurality opinion

concedes and the record demonstrates, McCree's motion to dismiss was overruled. Further,

the circuit judge admitted in his answer to McCree's preliminary writ petition "that Willis

McCree's motion to dismiss was denied." I am reminded of Senator Moynihan’s famous

adage: “Everyone is entitled to his own opinion, but not to his own facts.” 5

       McCree had a clear, unequivocal, specific statutory right to dismissal absent a

conclusion by the court that at least one of the three "considerations" set out in § 577.037.2

was present. No evidence was offered to meet the burden of production or persuasion and

the circuit court certainly did not defer its ruling on the motion, it overruled the motion.

Therefore, the preliminary writ of mandamus should be made permanent ordering the

circuit court to take no further action other than to sustain the motion dismiss.




                                                      ___________________________
                                                      Zel M. Fischer, Chief Justice




5
  If the plurality thinks Mignone was improperly decided because it finds the statute only places
the burden of production on the state concerning the three statutory considerations to avoid pretrial
dismissal, it could exercise judicial restraint and wait for a case to present those facts. But to
radically ignore the facts and claim the circuit court deferred its ruling when the circuit court
clearly overruled the motion based on an erroneous declaration of law is inexcusable in my view.



                                                 8
