State of Missouri, Appellant, v. Dennis M. Burns, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: State of Missouri, Appellant, v. Dennis M. Burns, Respondent. Case Number: 55374 Handdown Date: 11/24/1998 Appeal From: Circuit Court of Buchanan County, Hon. Patrick K. Robb Counsel for Appellant: Dwight K. Scroggins, Jr., and Hershel D. Shepherd Counsel for Respondent: T. Jefferson Stephens Opinion Summary: The State appeals the circuit court's dismissal, without prejudice, of the charge against the respondent, Dennis M. Burns, of delivery of a controlled substance, section 195.211, based on the State's failure to make a confidential informant available for interview by the respondent's counsel prior to trial as it had agreed to do. The State raises two points on appeal. In its first point, it claims that the trial court erred in granting the respondent's motion to dismiss because the trial court abused its discretion in that there were more appropriate, less drastic remedies it could and should have imposed. In its second point, it claims that the trial court erred in granting the respondent's motion to dismiss because, in doing so, the court exceeded its authority, pursuant to Rule 25.16, to impose sanctions against the State for its failure to make the confidential informant available for interview in that this failure did not violate any applicable discovery rule or court order for discovery issued pursuant thereto. REVERSED AND REMANDED. Division One holds: This court has jurisdiction to hear this appeal although it cannot be properly characterized as an appeal from a final judgment or an interlocutory appeal. The State's right to appeal is granted by section 547.200.2 which authorizes appeals by the State in all criminal cases which do not implicate double jeopardy. The failure of the court rules to provide for such an appeal cannot take away a right to appeal granted by statute. The State also timely filed its notice of appeal

and record on appeal. As to the merits of the State's appeal, the trial court exceeded its authority when it dismissed the charge against the respondent for failing to produce the confidential informant. The trial court can only sanction the State for a discovery violation pursuant to Rule 25.16 where the State has failed to produce discovery it is required to produce pursuant to Rule 25.03 or has been ordered to produce pursuant to Rule 25.04. The information sought by the respondent here was not discovery mandated by Rule 25.03, and the court never entered an order pursuant to Rule 25.04. To enter an order for purposes of Rule 25.04, the court was required to find that the information sought was both relevant and material to the respondent's case and was required to specify the material and information sought to be disclosed and the time and manner in which the disclosure is to be made. The court here did not do so. As such, it exceeded its authority in dismissing the criminal charge against the respondent, and the charge must be reinstated. Citation: Opinion Author: Edwin H. Smith, Judge Opinion Vote: REVERSED AND REMANDED. Spinden, P.J., and Ulrich, J., concur. Opinion: The State appeals the circuit court's dismissal, without prejudice, of the charge against the respondent, Dennis M. Burns, of delivery of a controlled substance, section 195.211(FN1), based on the State's failure to make a confidential informant (CI) available for interview by the respondent's counsel prior to trial as it had agreed with him to do. The State raises two points on appeal. In its first point, it claims that the trial court erred in granting the respondent's motion to dismiss because it abused its discretion in that there were more appropriate, less drastic remedies it could and should have imposed. In its second point, it claims that the trial court erred in granting the respondent's motion to dismiss because, in doing so, it exceeded its authority, pursuant to Rule 25.16, to impose sanctions against the State for its failure to make the CI available for interview in that this failure did not violate any applicable discovery rule or court order for discovery issued pursuant thereto. We reverse and remand. Facts The respondent was charged in the Circuit Court of Buchanan County on September 18, 1997, with one count of delivery of a controlled substance, section 195.211. On December 8, 1997, he filed, pursuant to Rule 25.04, a "Motion for Disclosure of Confidential Informant, or in the Alternative for Dismissal" together with a "Notice of Hearing." The same

day, the court heard the respondent's motion. However, before any evidence was adduced on the motion and before the court ruled, the State voluntarily revealed the name of the CI. The State also indicated that it could not provide an address for the CI, but that he could be reached through the Buchanan County Drug Strike Force. The State acknowledged that the CI was a material part of the transaction leading to the respondent's arrest and voluntarily agreed to make him available for interview by the respondent's counsel. The respondent never filed a motion asking the court to order the State to make the CI available for interview. In concluding the hearing, the trial court ordered discovery to be completed by December 16, 1997, and a docket entry was made indicating the same. On January 12, 1998, the respondent filed a second motion to dismiss alleging that the State had failed to make the CI available for interview as agreed. When the case was called for trial on January 14, 1998, the respondent asked the court to rule on this second motion to dismiss. The respondent claimed that his right to a fair trial was substantially prejudiced by the State's failure to make the CI available for interview. The State advised that the CI had moved out of the state, and that attempts to arrange for the respondent's counsel to interview him had been unsuccessful. The trial court sustained the motion to dismiss. In so doing, the court found that the case had been pending for a significant period of time and that the respondent had been in custody since his arrest. The court also found that since the respondent did not have an opportunity to interview the CI, he could not fully prepare a defense, and it would be unfair to require him to proceed to trial. The court indicated that the dismissal was without prejudice in anticipation that the charge would be refiled as soon as the State was able to produce the CI. The State clarified that the dismissal was without prejudice but made no other objection to the dismissal of the charge. The respondent was then discharged by the court. This appeal follows. I. Our Appellate Jurisdiction Before we address the merits of the State's claims on appeal, we must first address the contention of the respondent that this court is without jurisdiction to hear the State's appeal. The respondent challenges our jurisdiction on two grounds. First, he contends that an appeal by the State from the trial court's dismissal without prejudice of the criminal charge against him was not permitted because: (1) it was not an authorized interlocutory appeal pursuant to section 547.200 and Rule 30.02; and (2) it was not authorized as an appeal from a final judgment pursuant to Rule 30.01. Second, he contends that, even if the State's appeal was authorized, it still must be dismissed because it was not timely filed. We will address these two contentions separately. A. The State's Right to Appeal

The State has no right to appeal a decision favoring the accused in a criminal case unless that right is conferred by statute. State v. Drake, 906 S.W.2d 787, 788 (Mo. App. 1995). Section 547.200, RSMo Supp. 1997, sets out the State's right to an appeal in a criminal case and provides as follows:

1. An appeal may be taken by the state through the prosecuting or circuit attorney from any order or

judgment the substantive effect of which results in: (1) Quashing an arrest warrant; (2) A determination by the court that the accused lacks the mental capacity or fitness to proceed to trial, pursuant to section 552.020, RSMo; (3) Suppressing evidence; or (4) Suppressing a confession or admission.

1. The state, in any criminal prosecution, shall be allowed an appeal in the cases and under the

circumstances mentioned in section 547.210 and in all other criminal cases except in those cases where the possible outcome of such an appeal would result in double jeopardy for the defendant. The supreme court shall issue rules governing such appeals.

1. The appeal provided in subsection 1 of this section shall be an interlocutory appeal, filed in the

appropriate district of the Missouri court of appeals, unless the proceedings involve a charge of capital murder or murder in the first degree, pursuant to the provisions of section 565.001 or 565.003, RSMo, in which cases notices of appeal shall be filed in the supreme court of Missouri.

1. Notices of appeal involving appeals under subsection 1 of this section shall be filed in the appropriate

court within five days of the entry of the order of the trial court. In such appeals, the time requirements of section 545.780, RSMo, shall be tolled until the decision is rendered by the appropriate appellate court.

1. The supreme court shall issue appropriate rules to facilitate the disposition of such appeals, balancing

the right of the state to review the correctness of pretrial decisions of a trial court against the rights of the defendant to a speedy trial, including measures to facilitate these appeals by shortening of the time to file appellant's brief under supreme court rule 30.06(K) to ten days, and eliminations of motions for rehearing or retransfer under supreme court rules 30.26 and 30.27. Subsection 3 denominates as interlocutory those appeals authorized to be taken by the State pursuant to subsection 1, while subsection 2 authorizes the State to appeal in all other criminal cases where double jeopardy is not implicated. Although subsection 3 denominates authorized appeals under subsection 1 as interlocutory, nothing in the statute indicates whether appeals authorized by subsection 2 are interlocutory or from a final judgment. As to interlocutory appeals taken by the State, Rule 30.02 governs, whereas appeals by the State or the defendant from a final judgment are governed by Rule 30.01. The parties agree that the dismissal of the charge here is clearly not one of the four instances enumerated in section 547.200.1, from which the State is expressly authorized by section 547.200.3 to file an interlocutory appeal. Because the State's appeal is not authorized by subsection 1, the authority for it must come from section 547.200.2. In this respect, the respondent contends that because, unlike appeals taken pursuant to section 547.200.1, section 547.200 does not expressly authorize interlocutory appeals taken pursuant to section 547.200.2, any such appeal must be an

appeal from a final judgment as required by Rule 30.01. Given this fact, the respondent argues that because the dismissal without prejudice of the appellant's charge was not a final judgment, the State was not authorized to file this appeal under section 547.200.2. The issue then for us to decide is whether pursuant to Rule 30.01 there must be a final judgment before the State has a right to appeal pursuant to section 547.200.2. Section 547.200 does not specify whether appeals taken pursuant to subsection 2 thereof are interlocutory or from a final judgment. However, it is unnecessary to decide this precise issue in that the State's right to appeal under section 547.200.2 was previously addressed by this court in State v. Brown, 722 S.W.2d 613 (Mo. App. 1986). There, we held that, under Mo. Const. Art. V, section 5, a right to appeal granted by statute cannot be changed by rule. Id. at 616. Hence, if the State is authorized to bring an appeal pursuant to section 547.200.2, this right exists regardless of whether the appeal is denominated as interlocutory for purposes of Rule 30.02 or from a final judgment for purposes of Rule 30.01. "Any other result would allow the rules to negate or veto the statute . . . ." Id. at 616. Section 547.200.2 expressly allows the State to appeal "in all . . . criminal cases except in those cases where the possible outcome of such an appeal would result in double jeopardy." Double jeopardy attaches when a jury is impaneled and sworn. State v. Tiger, 972 S.W.2d 385, 388 (Mo. App. 1998). Because the charge here was dismissed without prejudice before a jury was even selected, double jeopardy did not attach. Thus, section 547.200.2 unequivocally conferred upon the State the right to appeal the dismissal of the criminal charge against the respondent whether or not it qualified as a final judgment for purposes of Rule 30.01.(FN2) Having determined that the State's appeal was authorized by section 547.200.2, we now turn to the respondent's contention that it was not timely filed. B. Timeliness of the Appeal The respondent next contends that, even assuming that the State was permitted to appeal the dismissal of the charge under section 547.200.2, its appeal should still be dismissed as being untimely. We disagree. In contending that the State's appeal pursuant to section 547.200.2 should be dismissed as untimely, the respondent first asserts that the notice of appeal was not timely filed. The respondent acknowledges that the time limit for filing the notice of appeal under section 547.200.2 is at best unclear. In this respect, the respondent correctly points out that section 547.200.2 does not provide a time within which the notice of appeal must be filed by the State but instead directs the supreme court to issue rules governing appeals under this section. Thus, we look to the rules for guidance. Rule 30.01 governs appeals from final judgments, requiring the notice of appeal to be filed within ten days after the judgment appealed from becomes final. Generally, a judgment in a criminal case is not final until sentence is

imposed. State v. Stout, 960 S.W.2d 535, 536 (Mo. App. 1998). Using this definition, the dismissal of the charge here would not have been a final judgment as there was no trial and consequently no conviction or sentence. With this as a given, the time limit of Rule 30.01 would not apply. Rule 30.02 governs interlocutory appeals by the State. It requires one to look to the statute authorizing the interlocutory appeal to determine when the notice of appeal must be filed. As stated, supra, the statutory authority for the State's appeal here is section 547.200.2, which does not provide a time limit for filing the notice of appeal. The only time limit for filing the notice of appeal in section 547.200 is found in subsection 4, which only applies to appeals taken pursuant to subsection 1. As such, if this is denominated an interlocutory appeal, neither section 547.200.2, the authorizing subsection, nor Rule 30.02 provide a time limit for filing the notice of appeal. This lack of guidance as to the time for filing a notice of appeal for an appeal taken pursuant to section 547.200.2 was recognized in Brown, where this court stated that: The long and short of it is there is no provision in the present rules which governs an appeal by the state applicable to this case under section 547.200.2. Rules 30.01 and 30.02 do not provide for an appeal by the state from an order which brings the prosecution to an end . . . . [T]he time for filing a notice of appeal is left in limbo . . . . With no guidance by applicable rule or statute as to when the order to dismiss was final for purposes of appeal by the state under section 547.200.2, this court cannot sustain [a] motion to dismiss the appeal on the ground it was untimely . . . . The parties had no frame of reference by which it can be determined when the order was final, and the issue will not be decided adversely to a party who had no definite guidance. Brown, 722 S.W.2d at 617-18. Following Brown, we find that the State's notice of appeal as to the dismissal of the criminal charge against the respondent was not filed out of time in that it had no clear guidance from the statute or an applicable rule as to when its notice had to be filed. The respondent, in attacking the timeliness of the State's appeal, next contends that even if the notice of appeal was timely filed, the record was not. In this respect, the respondent, although denying that the State's appeal was authorized by Rule 30.02, in its claim that the State's appeal was unauthorized, supra, now argues that we should apply the time limit for filing the record on appeal contained in Rule 30.02(b). Under Rule 30.02(b), the record on appeal must be filed within fifteen days of filing the notice of appeal in the circuit court. The State filed its notice of appeal on January 16, 1998. As such, the respondent, applying Rule 30.02(b), argues that the State would have been required to file the record on appeal by February 2, 1998, but did not do so, having filed it on April 15, 1998, requiring us to dismiss this appeal as being untimely filed. Even ignoring the inconsistency in the respondent's contentions as to the application of Rule 30.02 to the State's appeal, we find that his argument as to the timeliness of the record on appeal to be without

merit. The record reflects that this court, in its acknowledgment of the receipt of the State's notice of appeal, advised the State that it had ninety days from the filing of its notice of appeal in the circuit court to file its record on appeal. Thus, pursuant to our instructions to the State, it was required to file the record on appeal on or before April 15, 1998. The State complied with our directive by filing the record on appeal on April 15, 1998. This court is permitted by Rule 81.20 to enlarge the time for filing the record on appeal on the application of a party or on its own motion. Hence, even assuming, arguendo, that Rule 30.02(b) applied as the respondent suggests, requiring the State to file its record on appeal within fifteen days of the filing of its notice, by directing the State to file the record on appeal within ninety days, this court effectively extended the time for filing the record on appeal on our own motion. As such, we find the record on appeal was timely filed by the State. Because we find that the State was authorized to bring this appeal under section 547.200.2 and that the appeal was timely filed, we have jurisdiction and will proceed to address the merits of the State's claims. II. The State's Appeal In its second point, the State claims that the trial court erred in granting the respondent's motion to dismiss because, in doing so, the court exceeded its authority, pursuant to Rule 25.16, to impose sanctions against the State for its failure to produce the CI for interview in that this failure did not violate any applicable discovery rule or court order for discovery issued pursuant thereto. Because we find this point to be dispositive of the appeal, we address it alone. The question of whether the trial court had authority to dismiss the criminal charge against the respondent is a question of law. As such, it falls within this court's province of independent review and correction. State v. Tinoco, 967 S.W.2d 87, 89 (Mo. App. 1998) (citing Barry Serv. Agency v. Manning, 891 S.W.2d 882, 887 (Mo. App. 1995)). "Or, in other words, as to questions of law, our review is de novo with no deference being paid to the trial court's determination of the law." Id. In making its claim in Point II, the State admits that, in addition to voluntarily disclosing the name of the CI, it agreed to make him available for interview by the respondent's trial counsel. The State contends, however, that the production of the CI for interview was not required under Rule 25.03 and was not ordered by the trial court in compliance with Rule 25.04. As such, the State argues that the trial court exceeded its authority to impose sanctions under Rule 25.16 by dismissing the charge against the respondent for the State's failure to honor its agreement with the respondent to make the CI available for interview. The respondent concedes that Rule 25.03 did not compel the disclosure by the State of the CI's identity or require

it to make him available for interview by the respondent's trial counsel. However, he argues that his "Motion for Disclosure of Confidential Informant, or in the Alternative for Dismissal," was filed pursuant to Rule 25.04. He further argues that the trial court's docket entry made on December 8, 1997, requiring all disclosure to be made by December 16, when viewed in light of what transpired at the motion hearing, should be construed as a court order pursuant to Rule 25.04 for the purposes of imposing sanctions under Rule 25.16. In other words, the satisfaction of the requirements of Rule 25.04 was implicit given the particular circumstances of the case at bar. We disagree. There is no general right to discovery in a criminal case. State ex rel. State v. Campbell, 936 S.W.2d 585, 587 (Mo. App. 1996). Unless the discovery is authorized by statute or rule, it is not permitted. Id. In a criminal case, a defendant is entitled to discovery from the State as permitted in Rules 25.03 and 25.04. Rule 25.03 provides that the State must make certain disclosures to a criminal defendant upon written request of the defendant's counsel without a court order. If the defendant is seeking materials or information not required to be disclosed under Rule 25.03, he or she may file a written motion seeking a court order compelling disclosure pursuant to Rule 25.04 which provides, in pertinent part, as follows: (A) The defense may make a written motion in the court having jurisdiction to try said case requesting the state to disclose material and information not covered by Rule 25.03. Such motion shall specify the material or information sought to be disclosed. If the court finds the request to be reasonable, the court shall order the state to disclose to the defendant that material and information requested which is found by the court to be relevant and material to the defendant's case. (B) The court shall specify the material and information to be disclosed and the time and manner in which the state shall make disclosure under this Rule. Rule 25.16 is the enforcement mechanism for the criminal discovery rules. It authorizes the trial court to impose sanctions against either party only when that party has failed to comply with "an applicable discovery rule or an order issued pursuant thereto." Rule 25.16. As such, given the fact that Rule 25.03 has no application here, the trial court could only have imposed sanctions against the State for its failure to make the CI available for interview if it was ordered to do so in compliance with Rule 25.04. Thus, the issue for us to decide is whether the trial court's docket entry, as the respondent contends, was sufficient to qualify as a Rule 25.04 order, ordering the State to produce the CI for interview by the respondent's trial counsel. As discussed, supra, the record reflects that the respondent did file a written motion seeking a court order to compel the disclosure of the CI's identity and that a hearing on this motion was held on the record. At the hearing on the motion, the State voluntarily revealed the Cl's identity before any evidence was adduced and before the court could rule. In this regard, the following exchange took place at the motion hearing on December 8, 1997: THE COURT: State versus Dennis Burns. This is another oral motion for bond reduction?

MR. STEPHENS [counsel for respondent]: No, your Honor. This is a motion to reveal confidential informant who was present at the time of the alleged crime. THE COURT: When did you file this motion? MR. STEPHENS: It was sent off yesterday C or I am sorry, Friday. MS. DONALDSON [prosecutor]: Judge, this is another one that I agreed to waive notice. THE COURT: Okay. But I need to C I don't have the motion in the file. I don't know that it's been received. MS. DONALDSON: I received ours. THE COURT: Did you receive it today? MS. DONALDSON: Yes. Judge, if you would give me a minute and let me make a phone call, I might be able to take care of that today. The informant in this case is clearly a material part of this transaction. They have the right to know who the informant is. And I think I know who it is, I just need to be sure that the name I am going to provide them is correct. THE COURT: Why don't we just take a standing recess and you go check on that.

THE COURT: On State versus Dennis Burns, on the motion C the defendant's motion for disclosure of confidential informant or in the alternative for dismissal, is there anything the State would like to say in response to this motion? MS. DONALDSON: Judge, yes, if we may approach the bench I can disclose who the confidential informant is. THE COURT: Okay. Would the attorneys approach? And the defendant can approach also, for the record. You can approach, Mr. Burns. You can hear the statement. MS. DONALDSON: Judge, the confidential informant is [M.D.] in this case. THE COURT: Okay. MR. STEPHENS: Address? MS. DONALDSON: I didn't ask that. I just asked the name. THE COURT: And you can get the address, I'm sure. MS. DONALDSON: He can be reached through the Buchanan County Drug Strike Force. So you can use our office to reach him. We are the ones who always reach him for everything. THE COURT: Are you going to depose him or are you just going to interview him? MR. STEPHENS: Interview him, at least initially. MS. DONALDSON: Let me know when and then I'll have him available. THE COURT: Initially, and then you may depose him. Okay. . . . THE COURT: So we'll see you next week on this case. Next Thursday; if not, next Friday. It will be

called the 16th at 8:45 just to verify that discovery was completed, and I'm talking about the videotapes. I told Mr. Stephens he doesn't have to come down here if he gets the videotapes. The trial court's docket entry made on December 8, 1997, reads as follows: "State appears by L Donaldson, Deft. appears in person, in custody & by Atty. Jeff Stephens. All disclosure is to be made by December 16, 1997 @ 8:45 a.m." Rule 25.04 requires the defendant's motion for disclosure to be in writing and that it "specify the material or information sought to be disclosed." Rule 25.04(A). Here, the respondent's motion requested only the disclosure of the identity of the CI, which he obtained. He did not specify, as required, any further material or information he was seeking by court order, which presumably would have been the target of the agreed-upon interview. This failure to comply with the rule operated to deprive the trial court's docket entry of any vitality as a Rule 25.04 order for the State to produce the CI for interview, unless we were to find some sort of waiver by the State of this requirement as a result of its agreement with the respondent for such discovery. However, even assuming, without finding, that there was such a waiver, the trial court's December 8 docket entry still could not be viewed as an implied discovery order made in compliance with Rule 25.04 as the respondent suggests. Rule 25.04 requires the trial court, before ordering discovery, to: (1) find that the defendant's request for disclosure is reasonable and that the requested material and information is relevant and material to the defendant's case, Rule 25.04(A); and (2) "specify the material and information to be disclosed and the time and manner in which the state shall make disclosure under [the rule]." Rule 25.04(B). With respect to these required findings, there is nothing in the record to reflect what specific material and information was being sought by the respondent from the CI requiring him to be interviewed. In fact, the respondent concedes in his brief that he was not seeking any specific material or information, but wanted only to interview the CI in order to "prepare a defense in advance of trial; explore possible exculpatory leads the material witness may have provided; or avoid surprise if the witness presented inculpatory evidence." Rule 25.04 does not authorize this type of "may be" discovery, but limits court-ordered discovery to specific materials and information that are determined by the trial court to be relevant and material. At best, from the respondent's standpoint, the record reflects some general agreement that interviewing the CI might be helpful to his case. However, logically, without any understanding by the trial court as to what specific material and information was being sought by the respondent from the CI, it would be impossible for it to determine, as is required, if he was seeking material and information that was both relevant and material to his case. With this glaring deficiency, we fail to see how the trial court's docket order of December 8 could be construed as impliedly or expressly ordering the State to produce the CI in compliance with Rule 25.04. While the trial court may have impliedly expressed a belief as to the "manner" in which disclosure should be made,

via interview, the record is wholly insufficient to imply that it ever addressed, as required by Rule 25.04, what specific material and information was being sought by the respondent and whether it was relevant and material to his case. The respondent contends that, even if there was no compliance with Rule 25.04, he should not be penalized for this fact in that the State, by agreeing to produce the CI for interview, led him and the trial court to believe that technical compliance with the rule was not necessary and that in the absence of the State's agreement, there would have been compliance with the rule. In effect, he makes some sort of waiver or estoppel argument as to the requirements of the rule. He cites no authority for this argument nor can we find any. However, even if we were to find merit in such an argument, we would still find that the sanction of dismissal here, pursuant to Rule 25.16, was not authorized given the circumstances presented. A Rule 25.16 sanction for violation of mandated discovery, pursuant to Rule 25.03, or court-ordered discovery, pursuant to Rule 25.04, is premised on the fact that there has been initial compliance with the rule by which discovery is authorized. Thus, in the case of the State's violation of Rule 25.04 court-ordered discovery, the trial court, having already found, as a prerequisite to its order, that the requested material or information sought was relevant and material to the defendant's case, there is a presumption that the defendant has been prejudiced, jeopardizing his or her right to a fair trial, and is entitled to some form of sanction of the State, depending on the circumstances. However, logically, where this required finding of Rule 25.04 has not already been made, this presumption would not exist, requiring the defendant to show that he or she was prejudiced by the alleged violation of the discovery agreement with the State, entitling him or her to sanctions. As to this case, we have no qualms with the trial court attempting to sanction the State in order to hold it to its discovery agreement with the respondent to produce the CI for interview. This is certainly a proper role for the trial court and one we would encourage trial courts to take seriously, as the trial court did here. The State should be held accountable for its discovery agreements. However, where, as here, there is no record to indicate that, either before or after the violation of the discovery agreement, the trial court determined, as required for court-ordered discovery pursuant to Rule 25.04, what specific materials or information was being sought and that it was relevant and material, dismissal pursuant to Rule 25.16 would not be authorized. Finally, the respondent contends that even if the trial court's docket entry cannot be construed as a Rule 25.04 order, requiring the State's production of the CI for interview, he contends that Rule 25.07(A) required the same result. Specifically, he contends that Rule 25.07 gives the same force to discovery agreements of the parties as that given to Rule 25.04 orders. This contention is without merit. Rule 25.07 provides that "[u]nless otherwise ordered by the court,

disclosure under Rules 25.03 through 25.06 shall be: (A) In a manner agreed to by the state and the defendant." This rule only speaks to the "manner" in which mandated or court-ordered disclosure, pursuant to Rules 25.03 and 25.04, is to be made and does not "authorize" disclosure, as the respondent contends. Because the trial court did not first comply with Rule 25.04, as discussed, supra, we find that it had no authority under Rule 25.16 to dismiss the criminal charge against the respondent as a sanction for the State's failure to produce the CI for interview and erred in doing so. Conclusion The circuit court's judgment dismissing the charge against the respondent is reversed and the cause is remanded to the circuit court to reinstate the charge. All concur. Footnotes: FN1.All statutory references are to RSMo 1994, unless otherwise indicated. FN2.The respondent relies on State v. Evans, 679 S.W.2d 434 (Mo. App. 1984), to argue that section 547.200.2 does not grant the State an unequivocal right to appeal in a criminal case. That holding, however, was clearly limited to the particular facts of that case where the court found that to allow the State to appeal the declaration of a mistrial would effectively subject the defendant to double jeopardy. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.