State of Missouri, Respondent, v. Julie D. Flock, Appellant.

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, Respondent, v. Julie D. Flock, Appellant. Case Number: 55011 Handdown Date: 06/23/1998 Appeal From: Circuit Court of Randolph County, Hon. Ralph Jaynes Counsel for Appellant: Scott Hayes Counsel for Respondent: Karl Madden, Jr. Opinion Summary: The state appeals the circuit court's judgment to dismiss, with prejudice, its case against Julie D. Flock for driving while intoxicated. The state contends that the circuit court erred in not allowing the state to enter a nolle prosequi. REVERSED AND REMANDED WITH DIRECTIONS. Division One holds: The circuit court erred in refusing to accept the prosecutor's dismissal without prejudice. The prosecutor had sole, unfettered discretion to enter a nolle prosequi in this case. The circuit court had no authority to act. It lost jurisdiction of the case after the prosecutor dismissed the cause. Citation: Opinion Author: Paul M. Spinden, Judge Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS. Howard, P.J., and Breckenridge, J., concur. Opinion: The state appeals the circuit court's judgment to dismiss, with prejudice, its case against Julie D. Flock for driving while intoxicated. The state contends that the circuit court erred in not allowing the state to enter a nolle prosequi. We agree. The state charged Flock with driving while intoxicated in Randolph County. On September 3, 1997, the circuit

court scheduled trial for October 8, 1997. On October 3, 1997, the prosecutor asked for a continuance because an essential witness was not available to testify on October 8. The circuit court overruled the motion. On October 8, the circuit court called the case, and the state asked the circuit court to dismiss the case without prejudice. The circuit court denied the request and dismissed the case with prejudice because of the state's failure to prosecute. A nolle prosequi is a prosecutor's formal entry on the record indicating that he or she will no longer prosecute a pending criminal charge. It results in a dismissal without prejudice unless jeopardy attaches to bar subsequent prosecution. Jones v. State, 771 S.W.2d 349, 351 (Mo. App. 1989). The prosecutor has unfettered discretion to enter a nolle prosequi, and the circuit court may not interfere with the exercise of that discretion.(FN1) State ex rel. Griffin v. Smith, 258 S.W.2d 590, 593 (Mo. banc 1953); Simmons v. State, 782 S.W.2d 771, 773 (Mo. App. 1989). When a prosecutor enters a nolle prosequi in a criminal case, the circuit court has no jurisdiction to proceed with the case. State v. Smith, 907 S.W.2d 301, 302 (Mo. App. 1995). In this bench-tried case, the prosecutor entered a dismissal of the cause before trial and before any evidence was adduced. The circuit court, however, refused to accept the dismissal without prejudice and dismissed the case with prejudice. The circuit court had no authority to act. It lost jurisdiction of the case after the prosecutor dismissed the cause. We, therefore, reverse the circuit's dismissal with prejudice and remand with directions for the circuit court to enter a dismissal without prejudice pursuant to the prosecutor's nolle prosequi. Footnote: FN1.The only limitation on the prosecutor's unfettered discretion to enter a nolle prosequi is the circuit court's power to deny leave to enter a nolle prosequi on a murder charge after a guilty verdict and before sentencing. State ex rel. Norwood v. Drumm, 691 S.W.2d 238 (Mo. banc 1985). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.