State v. Reichenbacher

SMITH, Judge, dissenting. Defendant appeals from his conviction by a jury of assault in the first degree and sentence of 10 years imprisonment. Defendant’s decisive contention is that the trial court lacked jurisdiction to try him and convict him for assault in the first degree because the operative information charged him only with assault in the second degree. Some recitation of the background of this contention is required. Defendant was initially charged by indictment with assault in the first degree. Pursuant to a plea bargain an information in lieu of indictment was subsequently filed charging defendant with assault in the second degree to which defendant pled guilty. The trial court, after reviewing a medical report concerning the victim and a probation report, refused to accept the plea bargain. Defendant was allowed to withdraw his plea of guilty. The order of the court contained the following last paragraph: “Cause reinstated on the docket and reassigned to Division # 16 for further proceedings; The State is granted leave to reinstate or proceed on the original charge of first degree assault as the charge was reduced or amended to assault second degree only for the purpose of working out a plea bargain.” The prosecutor took no further action with regard to the information and filed no new or amended information charging first degree assault. In this posture the case went to trial. Section 545.110 R.S.Mo.1978 provides: “If there be at any time pending against the same defendant two indictments for the same offense, or two indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed.” This statutory provision is equally applicable to informations. State v. Taylor, 171 Mo. 465, 71 S.W. 1005 (1903) l.c. 1007; State v. Thompson, 392 S.W.2d 617 (Mo.1965) [5]. It is “elemental in our law that a defendant must be put on trial for a specific offense and convicted or acquitted of that offense.” State v. Thompson, supra, [3, 4]; State v. Billingsley, 465 S.W.2d 569 (Mo.1971) [1, 2], Where two informations or indictments or one of each are pending it is improper and beyond the court’s jurisdiction to try the defendant on the first charging document. State v. Mayer, 209 Mo. 391, 107 S.W. 1085 (1908) l.c. 1087; State v. Granberry, 530 S.W.2d 714 (Mo.App.1975) [3-5]. The first charging document is suspended until the second has been dismissed or quashed and cannot form the basis for trial of defendant. State v. Melvin, 166 Mo. 565, 66 S.W. 534 (1902); State v. Mayer, supra; State v. Brown, 364 Mo. 759, 267 S.W.2d 682 (1954) [6]. The State contends, however, that the trial court’s order implicitly dismissed the information thereby reviving the indictment. Such a contention flies in the face of a long line of cases holding that only the prosecuting attorney can voluntarily dismiss or nolle prosequi a felony charge. State ex rel. Thrash v. Lamb, 237 Mo. 437, 141 S.W. 665 (1911); State ex rel. Griffin v. Smith, 363 Mo. 1235, 258 S.W.2d 590 [839] (banc 1953); State v. Hoopes, 534 S.W.2d 26 (Mo. banc 1976) [4]; State ex rel. Lodwick v. Cottey, 497 S.W.2d 873 (Mo.App.1973) [7]; State v. Boclair, 621 S.W.2d 347 (Mo.App.1981) [1-3]; State ex rel. Norwood v. Drumm (E.D.Mo.App. No. 48327 May 3, 1984). The trail court’s order could not serve to dismiss the information because the court lacked the power to enter such a dismissal. The order at most constituted an unneeded authorization to the prosecutor to dismiss the information or file a new one. It was not self-executing. The prosecutor failed to take the additional step necessary of entering a nolle prosequi to dismiss the information or filing a new information. When defendant went to trial the last charging document, the information, charged him with second degree assault. The case here bears some similarity to that before us in State v. Granberry, supra. There the defendant was tried and found guilty of first degree murder. That conviction was reversed for new trial. Following reversal a second indictment was returned charging defendant with first degree murder and first degree robbery. The defendant’s lawyer sought to persuade the prosecutor to nolle prosequi the second indictment. Finally the parties in the presence of the court agreed that the second indictment would be dismissed and trial was had on the first indictment. The formal nolle prosequi was not filed until after the trial. Following conviction defendant challenged the jurisdiction of the court to try him on the original indictment. We held that the parties made a binding and valid agreement to dismiss the second indictment which was beneficial to the defendant. That agreement was made with the knowledge and approval of the court and in its presence. We further held that a filing of a memorandum of nolle prosequi was not necessary to dispose of the second indictment. The filing of such a memorandum in that case was purely ministerial. The extensive discussion and recitation of the testimony relating to the agreement make clear that the only basis of Judge Gunn’s opinion was the binding agreement of the parties. In the case before us we have no binding agreement between the parties. The dismissal of the information was not of benefit to the defendant. Nor has a dismissal of the information ever occurred. The information is still pending. While the failure to dismiss the information may have been an oversight by the prosecutor, it was an oversight which deprived the court of jurisdiction to try defendant on the indictment. The absence of a formal charge of the crime for which defendant is tried is jurisdictional and may not be waived. State v. Granberry, supra, [1, 2]. Judgment reversed. STEPHAN, J., concurs.