State v. Roberts, 259 P.3d 691

Roberts possessed a single generic Lortab tablet without a prescription; Lortab is a schedule III drug.
State charged Roberts under K.S.A. 2007 Supp. 65-4160(a), a drug felony, alleging possession of hydrocodone.
Roberts moved to dismiss, arguing 65-4160(a) does not cover schedule III hydrocodone combination products.
State did not dispute possession or scheduling; argued the statute criminalizes generic Lortab; district court granted the motion to dismiss.
State sought to amend to recast the charge; district judge declined amendment if felony claim continued.
Court of Appeals affirmed dismissal as not an acquittal; this court granted review to address appealability and double jeopardy concerns.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court's pretrial dismissal is the equivalent of an acquittal	Roberts argues the ruling is an acquittal, barred from appeal.	Roberts contends the order was not a dismissal and jeopardy attached, precluding appeal.	Order was not an acquittal; jeopardy had not attached.
Whether jeopardy had attached to bar the State's appeal	Roberts asserts jeopardy attached; State barred by double jeopardy.	State argues jeopardy never attached because no trial began at pretrial ruling.	Jeopardy had not attached; appeal permitted.
Whether K.S.A. 21-3108(1)(b) precludes the State's appeal	Roberts invokes res judicata to limit further prosecution and bar appeal.	State argues 21-3108(1)(b) does not bar appeal when jeopardy has not attached and statute allows it.	21-3108(1)(b) does not preclude the appeal when otherwise authorized.
Whether the district court's characterization of the ruling affects appellate jurisdiction	Roberts claims the ruling was a factual resolution akin to acquittal.	State contends the ruling was a pretrial dismissal, not an acquittal.	Characterization did not control; jeopardy had not attached and it was an order of dismissal for purposes of appeal.

State v. Crozier, 225 Kan. 120 (1978) (acquittal bar on appeal when jeopardy attaches)
State v. Gustin, 212 Kan. 475 (1973) (double jeopardy limits on appeal after acquittal)
State v. Whorton, 225 Kan. 251 (1979) (whether an order is dismissal or acquittal; jeopardy timing)
State v. Ruden, 245 Kan. 95 (1989) (jeopardy attachment timing governs appealability)
Serfass v. United States, 420 U.S. 377 (1975) (jeopardy attachment and appealability of pretrial dismissal)
United States v. Oppenheimer, 242 U.S. 85 (1916) (res judicata and acquittal discussion underpinning the rule)
Martin Linen Supply Co. v. Colonna, 430 U.S. 564 (1977) (definition of acquittal involves resolution of factual elements)
United States v. Dietrich, 126 F.3d 676 (D. C. Cir. 1997) (acquittal timing and evidentiary considerations in pretrial rulings)
Scott v. United States, 437 U.S. 82 (1978) (acquittal requires resolution of some factual elements)