SUPREME COURT OF MISSOURI en banc STATE OF MISSOURI, ) Opinion issued March 15, 2022 ) Appellant, ) ) v. ) No. SC99063 ) GARY ANDREWS, JR., ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable David C. Mason, Judge
The State appeals the circuit court’s decision to sustain defendant Gary Andrews
Jr.’s motion to dismiss a count of possession of a controlled substance. The circuit court
determined that, because Andrews had pleaded guilty to the offense of unlawful use of a
weapon by possessing a firearm while in possession of a controlled substance, any further
proceedings on the possession count would constitute a double jeopardy violation.
Although the Double Jeopardy Clause prohibits multiple punishments for the same
offense, it does not prohibit the State from prosecuting a criminal defendant for multiple
offenses in a single prosecution. Accordingly, the circuit court’s decision to dismiss the
possession count on double jeopardy grounds was erroneous. The judgment is reversed,
and the case is remanded. Background
Andrews was charged in a single indictment with five counts, including one count
of possession of a controlled substance under section 579.015 1 (“possession”) and one
count of unlawful use of a weapon by possessing a firearm while in possession of a
controlled substance under section 571.030(11) (“UUW-possession”), stemming from the
same incident. Prior to his scheduled plea hearing, Andrews filed a motion to dismiss,
arguing possession was a lesser-included offense of UUW-possession and, therefore,
constituted the “same offense” for purposes of double jeopardy. He contended the State
was precluded from prosecuting him for both of those offenses and requested the circuit
court either dismiss the possession count or require the State to elect to pursue either the
possession count or the UUW-possession count.
At the plea hearing, the circuit court indicated its belief that pleading guilty to both
the possession and UUW-possession counts would result in a double jeopardy violation
and warned that Andrews could not be sentenced on both counts. The circuit court
suggested the State proceed with just one of the offenses rather than allowing Andrews to
decide to which count to plead. But the State maintained its position that the two counts
constituted separate offenses and indicated its intent to proceed with all five counts as
charged. Andrews pleaded guilty to UUW-possession but not possession. Andrews also
pleaded guilty to the three other charged counts. The circuit court accepted Andrews’s
guilty pleas without objection from the State. The State asked the circuit court to
1 All statutory references are to RSMo 2016. 2 sentence Andrews for possession, but the circuit court declined to do so because he had
not pleaded guilty to that count. The State did not object to sentencing Andrews for the
other four counts while the possession count remained pending. The circuit court
sentenced Andrews to a total of four years’ incarceration, suspended the execution of that
sentence, and placed him on probation.
Andrews then refiled his motion to dismiss the possession count. He argued that,
because he had been convicted of the greater offense of UUW-possession via his guilty
plea, any subsequent prosecution or sentence for possession would be a double jeopardy
violation. The State filed a memorandum in opposition, arguing the legislature intended
possession and UUW-possession to constitute separate offenses subject to cumulative
punishment. The circuit court sustained Andrews’s motion and dismissed the possession
count, finding any further proceedings on that count would violate the Double Jeopardy
Clause’s prohibition against multiple punishments for the same offense. The State now
challenges that ruling. 2
Standard of Review
When reviewing the circuit court’s ruling on a motion to dismiss, this Court defers
to the circuit court’s factual findings but reviews questions of law, including questions
regarding constitutional rights, de novo. State v. Sisco, 458 S.W.3d 304, 312 (Mo. banc
2015). Double jeopardy claims are questions of constitutional rights subject to de novo
review. State v. Daws, 311 S.W.3d 806, 808 (Mo. banc 2010).
2 After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.
3 Analysis
The issue before this Court is whether the Double Jeopardy Clause bars the State
from trying Andrews for possession after he pleaded guilty to UUW-possession. The
Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
guarantees no person shall “be subject for the same offense to be twice put in jeopardy of
life or limb.” The Double Jeopardy Clause affords a criminal defendant two basic
protections: “it protects defendants from successive prosecutions for the same offense
after acquittal or conviction and it protects defendants against multiple punishments for
the same offense.” State v. Hardin, 429 S.W.3d 417, 421 (Mo. banc 2014). “In contrast
to the double jeopardy protection against multiple trials, the final component of double
jeopardy—protection against cumulative punishments—is designed to ensure that the
sentencing discretion of courts is confined to the limits established by the legislature.”
Ohio v. Johnson, 467 U.S. 493, 499 (1984). Consequently, the analysis is limited to
determining whether the legislature intended cumulative punishments. State v. McTush,
827 S.W.2d 184, 186 (Mo. banc 1992).
But whether a defendant can be sentenced separately for two different statutory
offenses is entirely distinct from whether that defendant can be prosecuted for both of
those offenses in a single proceeding. The United States Supreme Court addressed the
latter question in Ohio v. Johnson. In that case, the defendant was charged in a single
indictment with murder, aggravated robbery, involuntary manslaughter, and grand theft.
Johnson, 467 U.S. at 494-95. The defendant had pleaded guilty to the lesser offenses of
involuntary manslaughter and grand theft over the State’s objection. Id. at 496. The
4 defendant then successfully moved to dismiss the remaining counts on the grounds that
further prosecution for those offenses would violate the Double Jeopardy Clause. Id.
The Supreme Court determined the case did not concern double jeopardy
protection against multiple punishments for the same offense. Id. at 497. As the
Supreme Court explained, the trial court would have had to confront the question of
cumulative punishments if the defendant was also found guilty of the more serious
offenses, but that stage of the prosecution was never reached due to the dismissal of the
remaining counts. Id. at 500. The Supreme Court clarified that, although the Double
Jeopardy Clause protects defendants against cumulative punishments for the same
offense, it “does not prohibit the State from prosecuting [defendants] for such multiple
offenses in a single prosecution.” Id. The Supreme Court concluded the State was not
Free access — add to your briefcase to read the full text and ask questions with AI
SUPREME COURT OF MISSOURI en banc STATE OF MISSOURI, ) Opinion issued March 15, 2022 ) Appellant, ) ) v. ) No. SC99063 ) GARY ANDREWS, JR., ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable David C. Mason, Judge
The State appeals the circuit court’s decision to sustain defendant Gary Andrews
Jr.’s motion to dismiss a count of possession of a controlled substance. The circuit court
determined that, because Andrews had pleaded guilty to the offense of unlawful use of a
weapon by possessing a firearm while in possession of a controlled substance, any further
proceedings on the possession count would constitute a double jeopardy violation.
Although the Double Jeopardy Clause prohibits multiple punishments for the same
offense, it does not prohibit the State from prosecuting a criminal defendant for multiple
offenses in a single prosecution. Accordingly, the circuit court’s decision to dismiss the
possession count on double jeopardy grounds was erroneous. The judgment is reversed,
and the case is remanded. Background
Andrews was charged in a single indictment with five counts, including one count
of possession of a controlled substance under section 579.015 1 (“possession”) and one
count of unlawful use of a weapon by possessing a firearm while in possession of a
controlled substance under section 571.030(11) (“UUW-possession”), stemming from the
same incident. Prior to his scheduled plea hearing, Andrews filed a motion to dismiss,
arguing possession was a lesser-included offense of UUW-possession and, therefore,
constituted the “same offense” for purposes of double jeopardy. He contended the State
was precluded from prosecuting him for both of those offenses and requested the circuit
court either dismiss the possession count or require the State to elect to pursue either the
possession count or the UUW-possession count.
At the plea hearing, the circuit court indicated its belief that pleading guilty to both
the possession and UUW-possession counts would result in a double jeopardy violation
and warned that Andrews could not be sentenced on both counts. The circuit court
suggested the State proceed with just one of the offenses rather than allowing Andrews to
decide to which count to plead. But the State maintained its position that the two counts
constituted separate offenses and indicated its intent to proceed with all five counts as
charged. Andrews pleaded guilty to UUW-possession but not possession. Andrews also
pleaded guilty to the three other charged counts. The circuit court accepted Andrews’s
guilty pleas without objection from the State. The State asked the circuit court to
1 All statutory references are to RSMo 2016. 2 sentence Andrews for possession, but the circuit court declined to do so because he had
not pleaded guilty to that count. The State did not object to sentencing Andrews for the
other four counts while the possession count remained pending. The circuit court
sentenced Andrews to a total of four years’ incarceration, suspended the execution of that
sentence, and placed him on probation.
Andrews then refiled his motion to dismiss the possession count. He argued that,
because he had been convicted of the greater offense of UUW-possession via his guilty
plea, any subsequent prosecution or sentence for possession would be a double jeopardy
violation. The State filed a memorandum in opposition, arguing the legislature intended
possession and UUW-possession to constitute separate offenses subject to cumulative
punishment. The circuit court sustained Andrews’s motion and dismissed the possession
count, finding any further proceedings on that count would violate the Double Jeopardy
Clause’s prohibition against multiple punishments for the same offense. The State now
challenges that ruling. 2
Standard of Review
When reviewing the circuit court’s ruling on a motion to dismiss, this Court defers
to the circuit court’s factual findings but reviews questions of law, including questions
regarding constitutional rights, de novo. State v. Sisco, 458 S.W.3d 304, 312 (Mo. banc
2015). Double jeopardy claims are questions of constitutional rights subject to de novo
review. State v. Daws, 311 S.W.3d 806, 808 (Mo. banc 2010).
2 After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.
3 Analysis
The issue before this Court is whether the Double Jeopardy Clause bars the State
from trying Andrews for possession after he pleaded guilty to UUW-possession. The
Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
guarantees no person shall “be subject for the same offense to be twice put in jeopardy of
life or limb.” The Double Jeopardy Clause affords a criminal defendant two basic
protections: “it protects defendants from successive prosecutions for the same offense
after acquittal or conviction and it protects defendants against multiple punishments for
the same offense.” State v. Hardin, 429 S.W.3d 417, 421 (Mo. banc 2014). “In contrast
to the double jeopardy protection against multiple trials, the final component of double
jeopardy—protection against cumulative punishments—is designed to ensure that the
sentencing discretion of courts is confined to the limits established by the legislature.”
Ohio v. Johnson, 467 U.S. 493, 499 (1984). Consequently, the analysis is limited to
determining whether the legislature intended cumulative punishments. State v. McTush,
827 S.W.2d 184, 186 (Mo. banc 1992).
But whether a defendant can be sentenced separately for two different statutory
offenses is entirely distinct from whether that defendant can be prosecuted for both of
those offenses in a single proceeding. The United States Supreme Court addressed the
latter question in Ohio v. Johnson. In that case, the defendant was charged in a single
indictment with murder, aggravated robbery, involuntary manslaughter, and grand theft.
Johnson, 467 U.S. at 494-95. The defendant had pleaded guilty to the lesser offenses of
involuntary manslaughter and grand theft over the State’s objection. Id. at 496. The
4 defendant then successfully moved to dismiss the remaining counts on the grounds that
further prosecution for those offenses would violate the Double Jeopardy Clause. Id.
The Supreme Court determined the case did not concern double jeopardy
protection against multiple punishments for the same offense. Id. at 497. As the
Supreme Court explained, the trial court would have had to confront the question of
cumulative punishments if the defendant was also found guilty of the more serious
offenses, but that stage of the prosecution was never reached due to the dismissal of the
remaining counts. Id. at 500. The Supreme Court clarified that, although the Double
Jeopardy Clause protects defendants against cumulative punishments for the same
offense, it “does not prohibit the State from prosecuting [defendants] for such multiple
offenses in a single prosecution.” Id. The Supreme Court concluded the State was not
prohibited from continuing its prosecution of the defendant on the remaining counts,
notwithstanding the trial court’s acceptance of the defendant’s guilty pleas. Id. at 502.
Like the defendant in Johnson, Andrews was charged with multiple counts in a
single indictment; he had pleaded guilty to some, but not all of those counts; and he
successfully moved to have the remaining count dismissed on double jeopardy grounds
before he could be tried for it. But Andrews argues his case can be distinguished from
Johnson for two reasons. First, Andrews claims he pleaded guilty to the allegedly greater
offense of UUW-possession, while the defendant in Johnson had pleaded guilty to the
lesser charged offenses. 3 But this distinction is immaterial, as Johnson specifically
3 Because the question of whether possession is, in fact, a “lesser-included” offense of UUW- possession is inconsequential to the resolution of this case, this Court will not address it. 5 declined to hold that “determination of guilt and punishment on one count of a multicount
indictment immediately raises a double jeopardy bar to continued prosecution on any
remaining counts that are greater or lesser included offenses of the charge just
concluded.” Id. at 501 (emphasis added). Second, Andrews indicates the State failed to
object to the separate resolutions of the charges against him at either the plea or
sentencing stage, unlike in Johnson. Yet, while Johnson noted that the State objected
when the defendant “offered only to resolve part of the charges against him,” it did not
hold that such an objection was required to prevent an improper application of double
jeopardy protections. Id. at 501. This Court declines to impose such a requirement here.
As such, the present case cannot be meaningfully distinguished from Johnson. In
accordance with that decision, the State should not have been precluded from continuing
to prosecute Andrews for the charge of possession following his guilty plea, as doing so
would not implicate double jeopardy protections.
Conclusion
While the Double Jeopardy Clause prohibits multiple punishments for the same
offense, it does not prohibit the State from prosecuting a criminal defendant for multiple
offenses in a single prosecution. Consequently, the circuit court’s decision to dismiss the
6 possession count against Andrews was erroneous. 4 The judgment is reversed, and the
case is remanded. 5
______________________________ Mary R. Russell, Judge
All concur
4 Because the circuit court’s judgment is reversed on these grounds, the issue of whether the legislature intended for possession and UUW-possession to be subject to cumulative punishment need not be reached. 5 Upon reversal of the circuit court’s dismissal of the possession count, there is no final judgment on any of the counts against Andrews, including those to which he pleaded guilty and on which he was sentenced. See State v. Waters, 597 S.W.3d 185, 189 (Mo. banc 2020) (“A judgment of conviction is not final so long as any count in an indictment or information remains pending before the circuit court.”). 7