concurring in result.
For me it is sufficient that the circuit judge heard all the evidence that both parties cared to offer and decided on the basis of this evidence some counts were barred by limitation, and others by collateral estoppel pursuant to Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The prosecuting attorney argues that the judge did not have all the facts before him, but stubbornly disclaims any responsibility for supplying the full trial transcript, and did not even make an offer of proof as to what the missing evidence might show. The circuit court had jurisdiction to decide the points presented. The relators argue, in essence, that his final order, terminating proceedings on these counts, was wrong, but the governing statutes, §§ 547.200 and 547.230, RSMo 1978, do not permit an appeal by the state from the order dismissing the counts on the grounds assigned. The policy against appeals would be circumvented if review by writ of prohibition were to be allowed under these circumstances.
As the principal opinion points out, the effect of H.B. 279, adopted at the last session of the General Assembly, is to expand the state’s right of appeal in criminal cases far beyond what it has been in the past. Because of the passage of this bill, I see no reason to discuss the habeas corpus cases mentioned in the principal opinion, or to express approval or disapproval of earlier cases in which prohibition has issued to prevent the termination of criminal proceedings, as Judge Billings does in his concurring opinion. As my concurring opinion in State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983), decided this day, shows, I do not believe that we should decide more than is necessary in writ cases. This is all the more so when, because of intervening statutory changes, our holding will provide little guidance.
I agree that the provisional rule in prohibition should be quashed.