STATE OF MISSOURI,                         )
                                           )
       Plaintiff-Appellant,                )
                                           )
vs.                                        )      No. SD33333
                                           )
SKYLER DEWAYNE DOZLER,                     )      Filed: February 10, 2015
                                           )
       Defendant-Respondent.               )

          APPEAL FROM THE CIRCUIT COURT OF CEDAR COUNTY

                     Honorable James R. Bickel, Circuit Judge

REVERSED AND REMANDED

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

information with prejudice prior to trial. The State argues the trial court had no

jurisdiction to interfere with the State's decision to file a nolle prosequi. We

agree and reverse the trial court's judgment.

                    Factual and Procedural Background

       On June 7, 2013, the State filed an information in case number 13CD-

CR00012-01 charging Skylar Dewayne Dozler ("Defendant") with keeping a

public nuisance, possession of a synthetic cannabinoid, and unlawful use of drug

paraphernalia. See §§ 195.130, 195.233, RSMo (2000); § 195.202, RSMo Cum.

Supp. (2013). On February 10, 2014, the parties appeared in court, Defendant

waived his right to a jury trial, and the case was set for trial on May 9, 2014.
         On May 7, 2014, the State filed a motion requesting a continuance. In that

motion, the State informed the trial court that one of its witnesses was on

National Guard duty and would not be able to attend trial on May 9, 2014. Also

on May 7, 2014, Defendant filed a written objection to the continuance without

stating any grounds other than that he was prepared for trial.

         On May 9, 2014, the parties appeared in court. The hearing began with

the prosecutor stating, "Your Honor, the State of Missouri dismisses Case

Number 13CD-CR00012-01." The judge then asked defense counsel about

Defendant's objection to the State's request for a continuance. Defense counsel

stated the defense was ready to proceed and requested that if the case were to be

dismissed, it be dismissed with prejudice. The trial court granted Defendant's

motion and dismissed the case with prejudice. The State appeals.

                                      Discussion

         In its sole point on appeal, the State argues "[t]he trial court erred in

dismissing the case with prejudice . . . because the trial court did not have the

discretion either to refuse a nolle prosequi or to dismiss with prejudice[.]" We

agree.

         Nolle prosequi is Latin for "not to wish to prosecute" and is defined as "[a]

legal notice that a lawsuit or prosecution has been abandoned." Black's Law

Dictionary 1074 (8th ed. 2004). "A nolle prosequi is a prosecutor's formal entry

on the record indicating that a pending criminal charge will no longer be

prosecuted, and results in a dismissal without prejudice unless jeopardy had

attached." Keightley, 147 S.W.3d at 184. Because "a prosecutor has broad

discretion to determine when, if, and how criminal laws are to be enforced,"

                                            2
State v. Honeycutt, 96 S.W.3d 85, 89 (Mo. banc 2003), "[t]he prosecutor has

unfettered discretion to enter a nolle prosequi, and the circuit court may not

interfere with the exercise of that discretion."1 State v. Flock, 969 S.W.2d 389,

389 (Mo. App. W.D. 1998). Once a prosecutor enters a nolle prosequi, the trial

court is without jurisdiction to take any further action in the case. Kilgore v.

State, 70 S.W.3d 621, 623 (Mo. App. W.D. 2002). Any orders entered after a

trial court loses jurisdiction in a case are nullities. See In re Estate of Shaw,

256 S.W.3d 72, 76-77 (Mo. banc 2008). 2

        In the present case, the prosecutor entered an oral nolle prosequi prior to

trial. Section 56.087.1 provides that the prosecutor may dismiss a case at any

time without the consent of the court and that "[t]he dismissal may be made

orally by the prosecuting or circuit attorney in open court, or by a written

statement of the dismissal signed by the prosecuting or circuit attorney and filed

with the clerk of court." § 56.087.1, RSMo Cum. Supp. (2014). Under that

statute, a dismissal is without prejudice unless double jeopardy has attached.

§ 56.087.2, RSMo Cum. Supp. (2014). The trial court had no jurisdiction to enter

the dismissal with prejudice. See Kilgore, 70 S.W.3d at 623. Thus, the trial

court's order was a nullity.




1 The one exception to this rule occurs when the nolle prosequi is tendered after the case has been
submitted to the jury and a verdict has been reached. See State ex rel. Norwood v. Drumm,
691 S.W.2d 238, 240-41 (Mo. banc 1985). That exception does not apply in this case because here
the prosecutor dismissed the case prior to the beginning of trial.
2 Typically, the jurisdiction of the appellate court is derivative of the jurisdiction of the trial court.

State v. Bryant, 237 S.W.3d 604 (Mo. App. S.D. 2007). Thus, if the trial court is without
jurisdiction in a case, we are without jurisdiction to consider an appeal in that case. Id.
Nevertheless, we have jurisdiction to consider the question in this case because "[a]ppellate
courts inherently have supervisory authority to confine a trial court to its jurisdiction[.]" Shaw,
256 S.W.3d at 77.

                                                    3
       This conclusion is not altered by the simplified jurisdictional analysis

enunciated in J.C.W. ex rel Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc

2009). Article V, section 14 of the Missouri constitution gives the circuit court

subject matter jurisdiction over "all cases and matters, civil and criminal." Once

a case is voluntarily dismissed, however, there is no case or matter. See State ex

rel. Frets v. Moore, 291 S.W.3d 805, 812 n.6 (Mo. App. S.D. 2009).

       The State's point is granted because the trial court had no jurisdiction to

enter a dismissal with prejudice after the State entered a nolle prosequi.

                                     Decision

       The trial court's judgment is reversed. The case is remanded with

instructions that the trial court vacate its dismissal with prejudice.



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

GARY W. LYNCH, J. – CONCURS

DON E. BURRELL, J. – CONCURS




                                          4
