dissenting.
I respectfully dissent.
Assuming the six counts were properly joined in the single information per Rule 23.051 — defendant does not argue otherwise — the trial judge had discretion under Rule 24.07 whether to order the counts tried jointly or separately. State v. McCrary, 621 S.W.2d 266, 272[7] (Mo. banc 1981); State v. Jackson, 645 S.W.2d 725, 728[9] (Mo.App.1982).
It is clear that the trial judge, after realizing he had overlooked Count VI during the reading of MAI-CR 2d 1.02, decided that Count VI would not be tried with the other five. Perhaps, in the interest of maintaining a tidy record, he should have made a formal written entry spelling out that Count VI was being severed from the other five for purpose of trial. The fact remains, however, that Counts I through V were tried and Count VI was not. There was, consequently, a de facto severance of Count VI from the other five, which severance occurred before the jury was selected and sworn to try those five.
In these circumstances, I see no reason why appellate review of the five counts *813which were tried and reduced to judgment should not proceed. Each of those counts charged a separate crime, completely independent of each other. The outcome of each did not hinge on the outcome of any other.
The majority opinion holds, however, that the appeal is premature because no “disposition” was made of Count VI. Does this mean that if, on remand, the trial judge enters a formal order severing Count VI from the other five, appellate review of the judgment on Counts I through V will then proceed forthwith, utilizing the transcript, legal file and briefs already before us? If that is all the majority opinion holds, I am not deeply troubled, even though I see no need for such an order at this juncture, as a severance has in fact taken place by the trial, and resultant judgment, on Counts I through V.
The aspect of the majority opinion that most alarms me is the implication that a formal severance of Count VI from the other five may not be enough to make the judgment on those five appealable. The majority opinion appears, at least to me, to hint that after the trial judge severs Count VI, the prosecutor must dispose of that count by a nolle prosequi or a dismissal, and only then will the judgment on Counts I through V be appealable. If that is what the majority opinion intends to say, I believe it plants the seed for a bitter harvest.
Situations can easily arise where multiple counts against one defendant are properly joined in one information, and yet it would be an abuse of judicial discretion to order all counts tried jointly. Other situations (the instant case being an example) can occur where one or more counts of a multiple-count information against one defendant are, for sundry reasons, not tried with the other counts. In such situations, must the prosecutor nolle or dismiss all untried counts before there can be appellate review of those that were tried and reduced to judgment? If not, must appellate review be kept in limbo until the remaining counts are reduced to judgment? Would the latter procedure be fair to an incarcerated defendant?
It is conceivable that in a multiple-count case against one defendant, one count could be severed and tried, with the trial receiving great notoriety. If the defendant were convicted on that count, and if the State pursued the remaining count or counts, the publicity surrounding the first trial might require a change of venue for the trial of the remaining count or counts. Should that occur, and should that trial also result in a conviction, it would obviously be impossible for one court to enter one judgment disposing of all of the tried counts.
A situation could also arise where two defendants were properly charged, in separate counts in a single information, and tried together. If the jury returned a verdict of guilty on one defendant, but was unable to reach a verdict on the other defendant, must the first defendant await appellate review until there is a “disposition” as to the second defendant?
All of these vexing problems can be avoided by recognizing that the judgment on Counts I through V in the instant case is ready for appellate review and that no good reason exists for postponing it. If, in the future, the State undertakes to try defendant on Count VI, and if defendant believes the State, by reason of the trial judge’s handling of Count VI below, is barred from pursuing that count, defendant can raise the issue and it can be addressed. We note, however, that defendant voiced no objection when the trial judge announced that Count VI would not be submitted to the jury with the other five.
The only Missouri case relied on by the majority, State ex rel. Wagner v. Ruddy, 582 S.W.2d 692 (Mo. banc 1979), is inappo-site. There, a trial judge, after imposing sentence and rendering judgment in a criminal case, undertook to set the judgment and sentence aside for the purpose of obtaining a supplementary presentence investigation report. On application by the defendant, the Supreme Court of Missouri prohibited the judge from resentencing the *814defendant, ruling that the judge had exhausted his jurisdiction upon entry of the original judgment and sentence and that the judge had exceeded his jurisdiction in purporting to set the same aside. Nothing like that occurred here.
This Court once reviewed, in separate appeals, three judgments arising from separate trials of different individual counts of a multiple-count information against the same defendant. State v. Kimball, 613 S.W.2d 932 (Mo.App.1981); State v. Kimball, 620 S.W.2d 29 (Mo.App.1981); State v. Kimball, 624 S.W.2d 168 (Mo.App.1981). The lack of a “disposition” as to all counts was obviously no bar to appellate review there.
I would consider the instant appeal on the merits and leave the State and the trial judge to decide, in due course, what to do about Count VI.
. Rule references are to Missouri Rules of Criminal Procedure (13th ed. 1982).