             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

STATE OF MISSOURI,                               )
                                                 )
                                   Appellant,    )
                                                 )   WD81784
v.                                               )
                                                 )   OPINION FILED:
                                                 )   April 23, 2019
DYMON D. THOMPSON,                               )
                                                 )
                                 Respondent.     )


                   Appeal from the Circuit Court of Jackson County, Missouri
                          The Honorable Patrick W. Campbell, Judge

             Before Special Division: Edward R. Ardini, Jr., Presiding Judge, and
                         Mark D. Pfeiffer and Gary D. Witt, Judges

       The State of Missouri (“State”) appeals from the judgment of the Circuit Court of

Jackson County, Missouri (“trial court”), dismissing one of two counts of the State’s information

in lieu of indictment against Mr. Dymon D. Thompson (“Thompson”). We reverse and remand

with directions.

                                 Facts and Procedural History

       The State filed a two-count information in lieu of indictment against Thompson, charging

him with one count of the class C felony of possession of a controlled substance in violation of
section 195.2021 for being in possession of cocaine and one count of the class D felony of

unlawful use of weapon in violation of section 571.030.1(11) for being in possession of a Glock

Model 27 handgun, while also being in possession of cocaine, a controlled substance. Thompson

moved to dismiss one of the counts, arguing that the possession of a controlled substance was a

lesser-included offense of unlawful use of a weapon and, therefore, was barred by double

jeopardy. The trial court granted Thompson’s motion and directed the State to elect which count

would be dismissed.

        The State filed a motion objecting to the trial court’s order, requesting that the trial court

vacate its earlier order and allow it to proceed upon both counts or amend the order and exercise

the trial court’s power to designate which count of the information would be dismissed.

Thereafter, the trial court entered its judgment. The trial court found that every element of the

possession of a controlled substance charge was found in the unlawful use of a weapon charge,

and therefore, the Double Jeopardy Clause was “presumably violated.” The trial court further

found that the possession of a controlled substance charge was a lesser-included offense of the

unlawful use of a weapon charge. Consequently, the trial court dismissed the possession of a

controlled substance charge.

        The State appealed.

                                               Jurisdiction

        Thompson has moved this court to dismiss the State’s appeal for lack of jurisdiction. He

argues that the State’s interlocutory appeal is not authorized by the express provisions of

section 547.200.1 and the dismissal is not a final judgment.


        1
           All statutory references are to the REVISED STATUTES OF MISSOURI 2000, as updated through the 2015
non-cumulative supplement. In 2014, the General Assembly transferred section 195.202 to section 579.015
effective January 1, 2017. Because the State alleged that Thompson committed the charged crimes on or about
August 31, 2016, the former statute number and sentencing classification is used.


                                                     2
       In opposition, the State argues that the dismissal on constitutional grounds of one count

of a multi-count indictment is a final judgment from which it may appeal. The State also

contends that the judgment is final and appealable because it forecloses prosecution on count I

(possession of a controlled substance), prevents the State from proceeding with the litigation as it

was cast, and places a substantial cloud on the State’s right to prosecute count I in the future.

       Although there appears to be some confusion “as to whether dismissal of some, but not

all, counts in a multi-count information or indictment constitutes a final judgment for purposes of

a criminal appeal,” State v. Lovett, 427 S.W.3d 897, 901 (Mo. App. W.D. 2014); State v. Wright,

431 S.W.3d 526, 532 (Mo. App. W.D. 2014), our resolution of this jurisdictional challenge is

governed by the Missouri Supreme Court’s decision in State v. Honeycutt, 421 S.W.3d 410 (Mo.

banc 2013). In Honeycutt, the State charged the defendant with two counts of stealing a firearm

and one count of unlawful possession of a firearm. Id. at 413. The trial court sustained the

defendant’s motion to dismiss the third count on constitutional grounds. Id. The State appealed.

The Missouri Supreme Court concluded that the trial court’s judgment granting the defendant’s

motion to dismiss one count of a multi-count indictment was “a final judgment from which the

State may appeal,” because even though the dismissal was without prejudice, it was based on a

constitutional claim that “had the practical effect of terminating the litigation.” Id. at 413, 414

n.4.

       The factual and procedural scenarios here and in Honeycutt are virtually identical. Here,

the State charged Thompson with one count of possession of a controlled substance and one

count of unlawful use of a weapon while also being in possession of a controlled substance.

Thompson moved to dismiss one of the counts. The trial court dismissed the possession count,

finding that because every element of the possession charge was found in the unlawful use of a




                                                  3
weapon charge, the Double Jeopardy Clause was “presumably violated.” Because “Missouri

appellate courts are constitutionally bound to follow the last controlling decision of Missouri’s

Supreme Court,” State v. Miller, 536 S.W.3d 374, 379 (Mo. App. W.D. 2018) (internal quotation

marks omitted), following Honeycutt, we conclude that the trial court’s judgment dismissing the

possession count was a final, appealable judgment.

        Thompson’s motion to dismiss for lack of jurisdiction is denied.

                                           Double Jeopardy

        As relevant to our disposition in today’s ruling, the State contends that the Double

Jeopardy Clause’s protection against multiple punishments had not yet ripened because it does

not apply until sentencing. We agree.

        The Double Jeopardy Clause of the United States Constitution2 guarantees that no person

shall be “subject for the same offense to be twice put in jeopardy of life or limb.” U.S. CONST.

amend. V. According to the United States Supreme Court, the double jeopardy guarantee

“consist[s] of three separate constitutional protections. It protects against a second prosecution

for the same offense after acquittal. It protects against a second prosecution for the same offense

after conviction. And it protects against multiple punishments for the same offense.” North

Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes

omitted), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 803, 109 S.Ct. 2201,

104 L.Ed.2d 865 (1989). See also State v. Daws, 311 S.W.3d 806, 808 (Mo. banc 2010) (“The

[D]ouble [J]eopardy [C]lause ‘contains two distinct protections for criminal defendants: (a)

protection from successive prosecutions for the same offense after either an acquittal or a




        2
          The double jeopardy prohibition applies to the states through the Fourteenth Amendment. Benton v.
Maryland, 395 U.S. 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).


                                                    4
conviction[,] and (b) protection from multiple punishments for the same offense.’” (quoting State

v. Flenoy, 968 S.W.2d 141, 143 (Mo. banc 1998)).

        In the context of multiple punishments3 imposed in a single proceeding, the interest that

the Double Jeopardy Clause protects is “‘limited to ensuring that the total punishment did not

exceed that authorized by the legislature.’” State v. Owens, 849 S.W.2d 581, 584 (Mo. App.

W.D. 1993) (quoting Jones v. Thomas, 491 U.S. 376, 381, 109 S.Ct. 2522, 2525, 105 L.Ed.2d

322 (1989)). “Its purpose is to guarantee that ‘sentencing courts do not exceed, by the device of

multiple punishments, the limits prescribed by the legislative branch of government, in which

lies the substantive power to define crimes and prescribe punishments.’” Id. (quoting Jones, 491

U.S. at 381) (citing State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992)).

        The fundamental principle is “that an accused must suffer jeopardy before he can suffer

double jeopardy.” Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 43 L.Ed.2d 265

(1975). “[T]he constitutional policies underpinning the Fifth Amendment’s guarantee are not

implicated before that point in the proceedings at which ‘jeopardy attaches.’” Id. at 390-91

(internal quotation marks omitted). “[J]eopardy does not attach until a defendant is put to trial

before the trier of the facts, whether the trier be a jury or a judge.” Id. at 391 (internal quotation

marks omitted). “Both the history of the Double Jeopardy Clause and its terms demonstrate that

it does not come into play until a proceeding begins before a trier having jurisdiction to try the

question of the guilt or innocence of the accused.” Id. (internal quotation marks omitted).

“Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor

further prosecution constitutes double jeopardy.” Id. at 391-92.


        3
           This case does not involve the protection against successive prosecutions after either an acquittal or
conviction, and instead involves the protection against multiple punishments for the same offense. The distinction is
not without import, as it implicates at what stage in a criminal proceeding a defendant can raise a double jeopardy
challenge.


                                                         5
         “The point at which double jeopardy attaches depends upon the type of trial.” State v.

Smith, 988 S.W.2d 71, 77 (Mo. App. W.D. 1999). “In a court-tried case, jeopardy attaches when

the court begins to hear the evidence.” Id. (citing Breed v. Jones, 421 U.S. 519, 531, 95 S.Ct.

1779, 44 L.Ed.2d 346 (1975); Serfass, 420 U.S. at 388). In a jury trial, jeopardy attaches when

the jury is “‘empaneled and sworn.’” Id. (quoting Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156,

57 L.Ed.2d 24 (1978)). See also Martinez v. Illinois, 572 U.S. 833, 839, 134 S.Ct. 2070, 2074,

188 L.Ed.2d 1112 (2014) (“There are few if any rules of criminal procedure clearer than the rule

that ‘jeopardy attaches when the jury is empaneled and sworn.’”).

         As a result, in a scenario involving the possibility of multiple punishments for the same

offense in a single proceeding, jeopardy has not attached as to any offense before trial

commences. A pre-trial motion raising a double jeopardy challenge to the possibility of multiple

punishments for the same offense in a single proceeding is therefore premature. 4 Here, the trial

court erred by dismissing count I before trial on the grounds that the Double Jeopardy Clause

was “presumably violated.” Without having a trial in which the State presented its evidence to

the jury, Thompson “was not entitled to double-jeopardy protections because he never suffered

jeopardy of conviction.” State v. Aston, 434 S.W.3d 530, 535 (Mo. App. E.D. 2014). The

double jeopardy protection against multiple punishments for the same offense “‘is designed to

ensure that the sentencing discretion of the courts is confined to the limits established by the

legislature.’” State v. Taylor, 807 S.W.2d 672, 674-75 (Mo. App. E.D. 1991) (quoting Ohio v.

Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2540-41, 81 L.Ed.2d 425, 433 (1984)). “The

protection against multiple punishments for the same offense does not, however, prohibit the

state from prosecuting multiple offenses in a single prosecution.” Id. at 675 (citing Johnson, 467


         4
          This is in contrast to a “successive prosecutions” scenario where the double jeopardy challenge is to being
prosecuted for the same offense following an earlier acquittal or conviction.


                                                         6
U.S. at 500). “With respect to cumulative sentences imposed in a single trial, the Double

Jeopardy Clause does no more than prevent the sentencing court from prescribing greater

punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct.

673, 678, 74 L.Ed.2d 535 (1983). “The double jeopardy protection against multiple punishments

does not arise until the time of sentencing.”5 Taylor, 807 S.W.2d at 675 (emphasis added).6

“Thus, defendant cannot claim that submission of multiple offenses to the jury constituted double

jeopardy.” Id.

         Point I is granted.7

                                                   Conclusion

         Because the trial court erred by dismissing count I before trial on double jeopardy

grounds, the trial court’s judgment is reversed, and the matter is remanded to the trial court with

directions to vacate its judgment dismissing count I of the information in lieu of indictment, enter

an order denying without prejudice Thompson’s motion to dismiss, proceed to trial on both

charges, and address any potential double jeopardy challenge prior to the entry of sentencing and

judgment.

                                                      /s/Mark D. Pfeiffer
                                                      Mark D. Pfeiffer, Judge

Edward R. Ardini, Jr., Presiding Judge, and Gary D. Witt, Judge, concur.




         5
            In other words, though jeopardy “attaches” earlier in trial, the double jeopardy “protection” against
multiple punishments does not arise until the time of sentencing.
         6
            See State v. Bacon, 841 S.W.2d 735, 741-42 (Mo. App. S.D. 1992) (noting that because the double
jeopardy protection against multiple punishments does not arise until the time of sentencing, the double jeopardy
issue was timely raised when the defendant filed a motion for judgment of acquittal of lesser-included offenses after
the return of guilty verdicts and prior to the entry of judgment and sentencing).
         7
           Because we grant Point I, we need not and do not address Point II.


                                                         7
