IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS CITYSTATE OF MISSOURI

STATE OF MISSOURI ))

Plaintiff, )) Cause No. 22CR-XXXXXX

v. )) Division No. XX

DEFENDANT )) Date: August 4th, 2015

John Smith, )

MOTION TO DISMISS FOR DUAL PROSECUTION

COMES NOW Defendant, John Smith, by and through counsel, Andrew P. Cook, and

respectfully moves this Honorable Court to dismiss all charges pending in the above-styled

cause for violation of Defendant’s Due Process rights under the 5th and 14th Amendments of

the United States Constitution and Article I Section 10 of the Missouri Constitution. In

support thereof, Defendant offers the following facts and argument:

Summary of Facts

1. On, or about, 05/01/2015, Defendant was arrested within the City of St. Louis and

briefly detained.

2. On 05/02/2015, the prosecuting attorney for the Circuit Court of the City of St.

Louis filed an information charging Defendant with possession of a controlled

substance in violation of RSMo. § 195.202, a Class C felony.

3. On 06/01/2015, Defendant appeared at his preliminary hearing.

4. At the conclusion of the preliminary hearing, the associate court judge did not find

sufficient evidence to establish probable cause and bind the case over for trial.

5. On 06/02/2015, Defendant was indicted for the same offense by the grand jury.

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Argument

I. DEFENDANT’S MOTION TO DISMISS SHOULD BE GRANTED FOR VIOLATION OF

HIS PROTECTION AGAINST DUAL PROSECUTION UNDER RSMo. § 545.010.

In Missouri, felony charges may be brought against a defendant through either

information or indictment. RSMo. § 545.010. The method used is the exclusive

determination of the prosecuting attorney. However, the statute further states,

“But that mode of procedure which shall be first instituted by the filing of the

indictment or information for any offense shall be pursued to the exclusion of the

other, so long as the same shall be pending and undetermined; and the court in

which the prosecution shall be first commenced by the filing therein of the

indictment or information, and the issuing of a warrant thereon, shall retain

jurisdiction and control of the cause to the exclusion of any other court so long as

the same shall be pending and undisposed of.” RSMo. § 545.010

Therefore, it is improper for a prosecuting attorney to charge a defendant for the same

crime by both information and indictment simultaneously.

In the present case, the prosecuting attorney chose to pursue charges against

Defendant through an information. By doing so, the associate court gained exclusive

jurisdiction over the offenses. The grand jury had no jurisdiction to hear the charges prior

to their dismissal in associate court. If charges were brought before the grand jury when it

lacked jurisdiction, the delivered indictment is fatally defective and should be quashed.

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Due to the short interval between the dismissal of charges following the preliminary

hearing and the decision of the grand jury, it is possible these charges were brought to their

attention prior to the dismissal of charges in associate court.

II. DEFENDANT’S MOTION TO DISMISS SHOULD BE GRANTED BECAUSE THE COURT

MAY INVESTIGATE THE PROCEDURES OF THE GRAND JURY TO ENSURE JUSTICE

In the present case, secrecy rules prohibit Defendant from investigating the exact date

charges were brought before the grand jury. Under such circumstances, “a court may

intervene in a grand jury proceeding to ensure the orderly procedure and proper

functioning of the grand jury…” State ex rel. Rogers v. Cohen, 262 S.W.3d 648, 651 (2008)

(citing State ex rel. Hall v. Burney, 84 S.W.2d 659 (1935)).

If the court determines charges were originally brought before the grand jury prior to

the dismissal of the same charges in associate court on 06/01/2015, Defendant has been

deprived of his right to Due Process under the 14th Amendment to the United States

Constitution and Article I Section 10 of the Missouri Constitution.

REMEDY

Wherefore, Defendant moves this Honorable Court to:

1. Investigate the grand jury proceedings to determine whether jurisdiction existed.

2. Grant Defendant’s motion to dismiss.

3. Quash the indictment issued 06/02/2015.

4. Provide any other relief deemed necessary and proper to ensure justice.

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____s/Andrew P. Cook/s_____________________________

Andrew P. Cook Bar No. XXXXXXAssistant Public DefenderSt. Louis City Public Defenders Office 1114 Market. St., Ste. 602 St. Louis, MO 63101Phone: (314) 615-4778Email: andrewcook4590@gmail.com

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