State Missouri Ex Rel. Albert Earl Norwood

Relator Albert E. Norwood was the defendant in a criminal cause tried before respondent Judge Drumm, Jr. The jury found defendant guilty of second degree murder, a felony murder based on the underlying felony of possession of a controlled substance. After verdict at a hearing on defendant's motion for new trial, the assistant prosecuting attorney requested leave to file a memo of nolle prosequi as to the murder charge. Respondent refused to accept the memo and indicated his intent to deny defendant's after trial motions and proceed to sentencing. Relator then sought and obtained a writ of prohibition from the Easter District that prevented respondent from denying the prosecuting attorney opportunity to nolle prosequi the charge. The Eastern District subsequently made permanent its provisional writ of prohibition and this Court granted transfer. The question presented, one of first impression in Missouri, is whether the prosecuting attorney has the exclusive and unrestricted discretion to enter a nolle prosequi after verdict and before sentencing and judgment. The Court concludes that he does not and quashes the writ of prohibition issued by the Eastern District. Respondent defines the common law power of the prosecutor to enter a nolle prosequi as follows: 1) prior to impaneling and swearing the jury, a prosecutor has an absolute right to file a nolle prosequi; 2) during the trail a prosecutor does not have the right without the consent of the defendant; 3) after verdict a prosecutor has the right to enter a nolle prosequi only when the dismissed charge is a higher offense and a lesser included offense remains intact, and; 4) after sentencing and judgment a prosecutor loses all jurisdiction to nolle prosequi a charge. Relator takes issue with 3), contending that after the jury returns its verdict, the unrestricted power of a prosecutor revives and continues until the court enters judgment and imposes sentence.