STATE OF MISSOURI v. TATUM CLARK MCMILLIAN, Defendant-Respondent.
455 S.W.3d 462
| Mo. Ct. App. | 2015Background
- Defendant Tatum McMillian was charged by complaint with one count of felony stealing under Mo. Rev. Stat. § 570.030 for allegedly obtaining $500+ in unemployment benefits by deceit.
- On the morning of the scheduled preliminary hearing, McMillian moved to dismiss, arguing double jeopardy, improper expansion of punishment beyond § 288.380, and that the more specific misdemeanor statute (§ 288.380) should control.
- The preliminary hearing was continued, but the court heard the motion to dismiss and ordered the State to file suggestions in opposition within 20 days.
- The trial court dismissed the complaint without stating grounds; the dismissal occurred at the preliminary hearing stage and was without prejudice.
- The State appealed the dismissal to the Missouri Court of Appeals (Southern District).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appellate jurisdiction — is the dismissal appealable? | The State argued appeal proper (relied on precedent permitting appeal of some dismissals). | McMillian argued dismissal at preliminary hearing without prejudice is not a final judgment and is not appealable. | Court held no appellate jurisdiction: dismissal at preliminary hearing without prejudice is not a final judgment; appeal dismissed. |
| Double jeopardy | State: No double jeopardy because only one charge was filed. | McMillian: Charging under felony statute duplicates or subjects him to multiple punishments. | Court did not reach merits because of jurisdictional dismissal. |
| Proper statutory charge / specificity | State: Prosecutorial discretion permits choice of charge. | McMillian: More specific statute (§ 288.380 misdemeanor) should control under rule favoring specific statutes. | Not decided on merits for same reason. |
| Remedy on refiling / judicial recusal | State sought appellate resolution to permit refiling. | McMillian concerned about re-presentation to same judge. | Court noted rule from Brown: if State refiles after a no-probable-cause dismissal, the judge who dismissed must recuse; court provided that remedy guidance. |
Key Cases Cited
- State v. Burns, 994 S.W.2d 941 (Mo. banc) (final judgment required for appellate review in criminal cases)
- State v. Kiesau, 794 S.W.2d 309 (Mo. App. S.D.) (State may not appeal a dismissal at a preliminary hearing)
- State ex rel. Brown v. Duggins, 601 S.W.2d 11 (Mo. banc) (if complaint is dismissed for no probable cause, presenting the same evidence to the same judge on refiling is not permitted; original judge must recuse)
- State v. Smothers, 297 S.W.3d 626 (Mo. App. W.D.) (involved dismissal of a felony information after preliminary stages; distinguishable here)