NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
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State of Vermont Supreme Court
v. On Appeal from
District Court of Vermont,
Joanne M. Jones Unit No. l, Rutland Circuit
October Term, 1991
Francis B. McCaffrey, J.
Peter R. Neary, Rutland County Deputy State's Attorney, Rutland, for
Matt Harnett of Lorentz, Lorentz & Harnett, Rutland, for defendant-appellee
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
DOOLEY, J. Defendant, Joanne Jones, was charged with selling one-
eighth ounce of cocaine to an undercover informant. The State moved for a
continuance when the case was called to trial. After the court denied the
continuance, the State dismissed the case. On motion of defendant, the
court ruled that the dismissal was with prejudice so that the State could
not refile. The State appeals that order. We affirm.
Defendant was arraigned on July 31, 1989. A number of issues had to be
resolved prior to trial. The most significant surrounded the use of an
informant who was wired with a transmitter when the drug purchase occurred
in defendant's home. The court denied defendant's motions to suppress on
May 25, 1990. On June 4th, the court set the case for calendar call on June
26th with jury drawing and trial to commence the following day. At an off-
the-record conference held on June 26th, the State orally requested a con-
tinuance because a police officer witness was on annual leave.
The trial court questioned the need for the witness. The officer had
been on the scene when the informant returned from the drug purchase, had
taken the cocaine from the informant, and was directly involved in defend-
ant's arrest. At least one other officer had been present, however, at the
time of the absent witness officer's activities. The State agreed to
review whether the trial could go on without him, but again requested a
continuance on the next day at 1:00 p.m. After hearing the State's
request, the court stated that it understood that "other witnesses . . . can
testify to what this guy can testify to" and denied the continuance. The
court also denied a motion to amend the information to charge defendant with
aiding and abetting the commission of the crime, concluding that it changed
the theory of the case and came too late to allow defendant to prepare.
The deputy state's attorney then stated:
In light of that, Judge, and in light of the fact that
the State feels it needs Officer Pockette, the State at
this time is filing a dismissal without prejudice and is
going to reinstitute the charge with a citation for
July 23d, 1990.
He then filed with the court a dismissal of the prosecution, indicating it
was a dismissal "WITHOUT PREJUDICE" and reciting the reason for the dis-
missal as the unavailability of the officer. Defendant promptly moved for a
dismissal with prejudice but the court indicated that it didn't have the
right to do that. As defendant left the court room, an officer served her
with a citation to appear on July 23, 1990. The officer who cited defendant
had been alerted at 11:00 a.m. by the deputy state's attorney to be present
for that purpose.
Later that day, defendant moved in writing for dismissal of the pro-
secution "prior to her arraignment on July 23, 1990." Defendant argued
that her right to a speedy trial was being violated and that dismissal would
serve the interest of justice. The court heard the motion on June 28, 1990.
On July 18, 1990, the court issued findings and conclusions dismissing the
case under V.R.Cr.P. 48(b). It concluded that defendant's speedy trial
rights were not violated but that dismissal with prejudice would "serve the
ends of justice" and ensure "the effective administration of the court's
business" because the State's actions were entirely motivated to obtain a
continuance to which it was not entitled.
Before reaching the State's specific claims of error, it is instructive
to examine the rules under which the court and the parties operated. In
dismissing the information, the State was exercising its right under
V.R.Cr.P. 48(a) to nolle prosequi (nol pros) a case prior to trial. When
the attorney for the State dismisses an information in writing, "the pro-
secution shall thereupon terminate." Id.
The court acted under V.R.Cr.P. 48(b)(2) and 50(c). Rule 48(b)(2)
authorizes the court to dismiss a case if it "concludes that such dismissal
will serve the ends of justice and the effective administration of the
court's business." Under a 1989 amendment to this rule, the dismissal is
without prejudice unless, as occurred in this case, the court specifies that
the dismissal is with prejudice.
Continuances are governed by V.R.Cr.P. 50. Rule 50(b) requires that a
motion for a continuance be filed two days before calendar call. If based
on absence of a witness, Rule 50(c) requires that the motion be accompanied
by an affidavit showing "the substance of the testimony which he is expected
to give, and the grounds for such expectation; and the measures taken to
procure his attendance or deposition, to the end that the court may judge
whether due diligence has been used for that purpose." Although the State
did not comply with Rule 50(c)(1) by filing an affidavit, the court did not
rely on this violation and obtained much of the needed information from
representations of the deputy state's attorney. (FN1) The main reason that the
court denied the continuance was that the State "failed to establish that
[the officer] . . . was a necessary witness."
The State's two claims on appeal are that (1) the State's dismissal of
the information under V.R.Cr.P. 48(a) deprived the court of jurisdiction to
enter an order under Rule 48(b) dismissing the case with prejudice, and (2)
the court could not dismiss the case with prejudice without forewarning the
deputy state's attorney that such an action could result from the failure of
the State to proceed to trial. The State's first claim is based on Rule
48(a), which sates that when dismissed by the State, the "prosecution shall
thereupon terminate." In the State's view, its dismissal of the case
removed it from the court's consideration, ending the court's jurisdiction
for further action. See State ex rel. Griffin v. Smith, 363 Mo. 1235, 1241,
258 S.W.2d 590, 595 (1953) (after a nol pros, court has "lost jurisdiction
of the criminal case"); State v. Pond, ___ N.H. ___, ___, 584 A.2d 770, 772
(1990) (nol pros removes case from court's consideration).
We think that the State's position is overly simplistic and rigid. We
agree that the State's decision to dismiss the case is entirely unilateral,
and the trial court had no power to reject the dismissal or impose terms on
it. See State v. Mitchell, 147 Vt. 218, 220, 514 A.2d 1047, 1048-49 (1986).
The issue here, however, is not whether the case is dismissed but rather the
consequence of the dismissal. The rule does not state that consequence.
While a nol pros does not ordinarily operate as an acquittal or bar further
prosecution of the offense, State v. Forbes, 147 Vt. 612, 616, 523 A.2d 1232, 1235 (1987), we have emphasized that we do "not in any way condone"
the use of a nol pros as a device to delay a trial. State v. Cabrera, 127
Vt. 193, 196, 243 A.2d 784, 787 (1968). It is consistent with the wording
of the rule and the nol pros power of prosecutors to hold that the court's
power to dismiss with prejudice extends also to cases dismissed by the
We believe that the rule the State seeks would lead to a race to take
action, as this case demonstrates. Immediately after the court denied the
State's request for a continuance, the deputy state's attorney removed from
his file a written dismissal and filed it with the court. In effect, the
State gave itself the continuance the court had just refused. See State v.
Wells, 443 A.2d 60, 64 (Me. 1982). Because of the State's precipitous
action, the court was never able to consider what sanctions were appropriate
if the State did not go forward. The court was wholly deprived of the
ability to manage its docket.
We are unwilling to encourage this behavior by the State. The better
procedure is for the State to insist on its need to have its witness and for
the court to fashion a sanction appropriate to the circumstances. Only
rarely would a sanction of final termination of the case be appropriate.
See id. Under the rule proposed by the State, the choice is between no
sanction and dismissal, when neither is appropriate.
Nor do we believe that the answer lies in allowing a sanction in the
refiled case, rather than in the case dismissed by the prosecutor. Defend-
ant then would continue to face the anxiety and other impacts of an un-
resolved criminal charge as if there were no dismissal. See United States
v. Furey, 514 F.2d 1098, 1106 (2d Cir. 1975) (noting a defendant may suffer
more from dismissal and refiling than from one continuing prosecution).
Important pretrial issues, like the motions to suppress in this case, should
have to be resolved anew based on another evidentiary hearing. Even if the
delay were justified as a general rule, there is no justification in this
case. Defendant had already been cited to appear in a second proceeding to
answer the criminal charges when the court acted under Rule 48(b)(2). The
citation involved "a finding by a law enforcement officer that there is
probable cause to believe [defendant] . . . has committed a crime and . . .
commencement of a criminal proceeding based on that finding." Caledonian-
Record Pub. Co. v. Walton, 154 Vt. 15, 26, 573 A.2d 296, 302 (1990). In
effect, the trial court, in terminating the first proceeding with prejudice,
acted to dismiss the refiled case.
We have reviewed the decisions from other jurisdictions with rules
similar to V.R.Cr.P. 48. Two states have addressed the issue presented
here. In State v. Braden, 375 So. 2d 49, 50 (Fla. Dist. Ct. App. 1979), the
Florida Court of Appeals, Second District, held that a dismissal with
prejudice following a nol pros is not effective because "everything which
occurs in a proceeding subsequent to the filing of a nolle prosse by the
state is a nullity." Braden has been followed by other Florida district
courts of appeal. See, e.g., State v. Kahmke, 468 So. 2d 284, 285-86 (Fla.
Dist. Ct. App. 1985); State v. M.J.B., 576 So. 2d 966, 967 (Fla. Dist. Ct.
App. 1991). The Florida cases also prevent the imposition of sanctions in
the refiled case. See State v. Kahmke, 468 So. 2d at 285-86. Although the
practice "may seem underhanded," State v. M.J.B., 576 So. 2d at 967, the
state has an absolute right to give itself a continuance in Florida.
The New Mexico Court of Appeals, contrarily, has taken a position
similar to that adopted in this case. In State v. Ericksen, 94 N.M. 128,
607 P.2d 666 (1980), the state nol prossed a case to avoid having motions
heard by a particular judge. After giving the state a renewed opportunity
to go forward with the motions, the judge dismissed the case with prejudice.
The New Mexico Court of Appeals affirmed:
We look past the form of the district attorney's usual
right to file a nolle prosequi in any given case upon
good cause and honest motives, and focus instead upon
the substance of such conduct when he not only fails to
demonstrate good faith but leaves no other impression
than that he has deliberately engaged in game-playing
with the rules, and has misused his discretionary powers
to achieve a barred result. A trial judge acts well
within his duties to assure that "the most effective use
be made of the court's resources" to "supervise and
control the movement of all cases on its docket from the
time of filing through final disposition," and to apply
sanctions when reasonable efforts to manage the court's
caseload have failed. . . . Especially are these duties
served when lawyers scheme to disregard their corres-
ponding responsibility to "avoid unwarranted delays or
excuses." . . . Expediting the flow of cases through
the courts, which includes taking appropriate action
when prosecutors engage in sham procedures, is a
peculiarly judicial function.
Id. at 130-31, 607 P.2d at 668-69 (citations omitted; emphasis in original).
The court rejected the argument that it had no authority to act once the
prosecutor dismissed the case. Id.
The New Mexico policy better fits our circumstances. We have stated
that we will not allow use of nol pros as a device to delay a trial. State
v. Carbrera, 127 Vt. at 196, 243 A.2d at 787. Our continuance rule leaves
control of docket management with the courts. If we adopted the Florida
rule, as the State urges, we would abandon that control to the State.
The State next argues that the court's action is invalid because the
court failed to forewarn it that failure to go to trial would result in
dismissal with prejudice. This argument is based on decisions interpreting
Fed. R. Crim. P. 48(b), similar to ours. See, e.g., United States v. Loud
Hawk, 628 F.2d 1139, 1150 (9th Cir. 1979). Under federal law, trial courts
may exercise discretion to dismiss with prejudice under Rule 48(b) "with
caution and only after a forewarning to the prosecution that dismissal with
prejudice will result from a failure to proceed to trial." Id. A number of
states with similar rules have adopted the federal holdings. See State v.
Lopez, 99 N.M. 385, 388, 658 P.2d 460, 463 (N.M. App. 1983); State v. Benn,
713 S.W.2d 308, 310 (Tenn. 1986).
We agree that the sanction of dismissal with prejudice should be used
only "sparingly," State v. Wells, 443 A.2d at 64, and ordinarily should
follow a forewarning. The forewarning requirement has been applied in cases
where the prosecution does not go forward and present its case after it has
been denied a continuance. See State v. Lopez, 658 P.2d at 462. It ensures
that the prosecution is able to choose between going to trial and taking the
sanction of dismissal with prejudice.
No such choice was available in this case. The State acted preci-
pitously to dismiss the case before the court could consider the effect of
its denial of a continuance. The court had no opportunity to consider
appropriate sanctions or forewarn the State of the possible impact before
the State dismissed the case. Moreover, although defendant immediately
filed a motion to dismiss with prejudice, which the court heard the day
after trial was to commence, the State never suggested that it was prepared
to go to trial to avoid dismissal or that some other sanction should be
imposed. It never raised the forewarning issue until it filed its brief in
this Court. See State v. Hugo, 156 Vt. ___, ___ n.5, 592 A.2d 875, 881 n.5
(1991) (objection on one ground does not preserve a claim for appeal on a
new ground). In view of the State's position, that it had an absolute
right to dismiss the case without prejudice and start anew, it is difficult
to see what forewarning would have accomplished.
FOR THE COURT:
FN1. The State argued that the failure of the court generally to enforce
the affidavit requirement prevented its enforcement in this case. We
disagree. While the trial court may often rely on representations of
counsel in situations where there is no challenge to the factual assertions,
it retains the right to insist on compliance with the affidavit requirement
to resolve bona fide contests. We are unwilling to read this protection for
defendants out of the rule.