State v. Nicori, 407 P.3d 518

Nicori and Olick were re‑indicted on more serious charges the day after they requested discovery; defendants moved claiming the timing created an appearance of prosecutorial vindictiveness.
Superior court initially found a prima facie appearance of vindictiveness and scheduled an evidentiary hearing for the State to rebut the presumption.
Defense subpoenaed the prosecutor to testify at that hearing; the State moved for reconsideration and the court granted it, then on reconsideration found no appearance of vindictiveness.
Despite reversing, the superior court (apparently sua sponte) allowed defense to subpoena the prosecutor to pursue a claim of actual vindictiveness the defendants had not pleaded.
The State filed a second motion for reconsideration of the court’s post‑rehearing decision; the superior court refused to permit the State to seek further reconsideration and barred the second motion.
The State petitioned for appellate review asking reversal of (1) the court’s order requiring the prosecutor to attend and testify, and (2) the refusal to allow reconsideration; Nicori cross‑petitioned arguing a prima facie showing required the court to place the burden on the State to disprove vindictiveness.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the superior court erred in refusing to allow the State to file a second motion for reconsideration of its decision on rehearing	State: the court must be allowed to seek rehearing/reconsideration of a decision issued on rehearing when new issues arise from that decision	Defendants: (implicit) the court properly barred repetitive reconsideration	Held: Grant. Parties may seek reconsideration of an order issued on rehearing when the second motion addresses issues newly arising from the court’s rehearing decision; the superior court erred in barring the State’s second motion
Whether the superior court should have required the State/prosecutor to testify at an evidentiary hearing on prosecutorial vindictiveness	Nicori: defendants established a prima facie appearance of vindictiveness, so the State must rebut and the prosecutor should testify	State: challenges subpoena and necessity to have prosecutor testify; sought reconsideration	Held: Cross‑petition denied re burden; appellate court did not decide merits of requiring prosecutor to testify because it remanded to allow State to pursue reconsideration first

Brickell Place Condominium Ass’n v. American Design & Dev. Corp., 470 So.2d 74 (Fla. Dist. Ct. App. 1985) (litigant may seek rehearing of a decision on rehearing)
Consumers’ Co. v. Public Utilities Comm’n, 236 P. 732 (Idaho 1925) (recognizing rehearing rights against orders on rehearing)
Moncla v. City of Lafayette, 241 So.2d 532 (La. 1970) (party foreclosed for failing to seek rehearing of decision on rehearing)
Carter v. Industrial Comm’n, 290 P. 776 (Utah 1930) (order on rehearing is a new order subject to attack by rehearing)
Denmark v. Liberty Life Assurance Co., 566 F.3d 1 (1st Cir. 2009) (federal appellate recognition that rehearing may be sought of orders on rehearing)
Goodrich v. Industrial Accident Comm’n, 140 P.2d 405 (Cal. 1943) (authority to entertain second rehearing when decision on rehearing rests on new grounds)