State v. Roya

State v. Roya (97-471); 169 Vt. 572; 730 A.2d 600

[Filed 08-Apr-1999]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-471
                            SEPTEMBER TERM, 1998

State of Vermont	             }	   APPEALED FROM:
                                     }
                                     }
     v.	                             }	   District Court of Vermont
                                     }	   Unit No. 2, Chittenden Circuit
Kenneth G. Roya	                     }
                                     }	   DOCKET NO. 5366/5367-11-97Cncr	

             In the above-entitled cause, the Clerk will enter:
  State of Vermont appeals the November 11, 1997 order of the district court
  dismissing with  prejudice the charges against defendant Kenneth Roya.  We
  reverse.


       The State charged that defendant operated a vehicle on a public
  highway while under the influence  of an intoxicating liquor in violation
  of 23 V.S.A. § 1201(a)(2) and refused a law enforcement  officer's
  reasonable request for an evidentiary test when defendant had previously
  been convicted  of DUI in violation of 23 V.S.A. § 1201(b).  The judicial
  officer dismissed the charges with  prejudice because she did not find an
  articulable suspicion for the stop and mandated that any  future efforts by
  the State to charge defendant in this incident be brought before the same
  judicial  officer.


       This case is presented to us in a peculiar posture.  The judicial
  officer dismissed the charges with  prejudice at a hearing held pursuant to
  V.R.Cr.P. 5(c).  Rule 5(c), entitled "Initial Determination  of Probable
  Cause," provides in relevant part:

    If the defendant was arrested without a warrant . . . and the
    prosecution is upon information, the judicial officer shall determine .
    . . whether there is probable cause to believe that an offense has been
    committed and that the defendant has committed it.  If the judicial
    officer does not find probable cause, he shall dismiss  the information
    without prejudice and discharge the defendant.  Upon conclusion  of
    proceedings under this rule, the judicial officer shall file the indictment
    or information and affidavit or sworn statement in the superior court or
    territorial unit  of the District Court having jurisdiction of the offense.


V.R.Cr.P. 5(c) (emphasis added).  


       The most obvious feature of Rule 5(c) pertaining to this case is its
  limited purpose: to determine  "whether there is probable cause to believe
  that an offense has been committed and

 

  that the defendant committed it."  Id.  If probable cause is found,
  the information is filed and the  criminal court process begins.  See id. 
  If it is not, then the information is dismissed without  prejudice, and the
  defendant is discharged.  See id.

       The judicial officer may only dismiss the information, and not the
  case, at the 5(c) hearing.  There  is in fact no case to be dismissed at
  this point because the information is not even filed (and thus  the
  criminal court process has not begun) until after there has been a finding
  of probable cause.  Additionally, the statute explicitly states that the
  information may only be dismissed without  prejudice.  The State remains
  free to attempt to meet the initial probable cause requirement by the 
  submission of additional information.  The judicial officer's decision in
  the instant case therefore  contravenes the plain language of the statute. 
  The judicial officer also lacks the authority to limit  the choice of
  judges before which future charges may be brought.

       Reversed to allow for refiling.


                                       BY THE COURT:

                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
	                               John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice