8 Conn. App. 248 | Conn. App. Ct. | 1986
After a trial to a jury, the defendant was convicted of the illegal sale of a controlled substance, a violation of General Statutes (Rev. to 1981) § 19-480 (a), and the fraudulent sale of a noncontrolled substance, a violation of General Statutes (Rev. to 1981) § 19-473, as amended by Public Acts 1981, No. 81-199, and Public Acts 1982, No. 82-472, § 68, now codified in General Statutes § 21a-268. The defendant appeals from the judgment rendered on the jury’s verdict, claiming that the trial court erred: (1) in entertaining the state’s motion to rehear the defendant’s motion to dismiss and, subsequently, in vacating its earlier dismissal of the charges against the defendant; and (2) in denying the defendant’s motion in arrest of judgment.
The following facts are not in dispute. On June 8, 1983, the defendant was arrested for the alleged sale of narcotics and the alleged fraudulent sale of a non-controlled substance. The defendant later posted bond and was released. On July 7,1983, defense counsel filed a motion for disclosure, production and discovery and a motion for a bill of particulars. The motions were later marked off the court calendar and the case was put on the firm trial list. On May 29, 1984, a motion to compel the state to respond to the defendant’s motions was filed. That motion was scheduled to be heard on June 7, 1984. On June 4, 1984, the trial court, Fishman, J., informed the prosecutor in the case that the materials sought by the defendant should be delivered to defense counsel the next day. At 10 a.m. on June 5, 1984, the answers to the defendant’s motions had not yet been delivered, although the court and defense counsel were
After taking an exception to the court’s ruling, the state on that date filed answers to the defendant’s motions and also filed a motion for a rehearing on the motion to dismiss. On June 14, 1984, the trial court, after hearing argument, vacated its earlier decision and denied the defendant’s motion to dismiss. In making its decision, the court stated that it was unaware that the motions for discovery and a bill of particulars had been marked off the calendar and, instead, had acted upon the mistaken representation of defense counsel that those motions had been granted and that the state had failed to comply. Thus, the court concluded, there was, in actuality, no basis in the record for dismissing the case against the defendant. The defendant did not renew his motion to dismiss on these grounds prior to trial.
On July 9,1984, the state filed a substitute information against the defendant. After he was tried and convicted, the defendant filed a motion in arrest of
The defendant’s first claim of error is that the trial court, Fishman, J., erred in taking further action in the case after granting the defendant’s motion to dismiss. Specifically, he argues that the trial court erred in entertaining the state’s motion to rehear the motion to dismiss and in subsequently vacating its earlier dismissal of the charges against the defendant. The defendant, in effect, claims that the motion to dismiss could not be reheard because the court had lost in personam jurisdiction over him when it granted his motion to dismiss on June 5,1984, and did not, therefore, have any authority over him thereafter.
In this case, the trial court dismissed the charges against the defendant based upon an erroneous assumption concerning his motions for discovery and for a bill of particulars. In reviewing its decision, the trial court stated that the dismissal of criminal charges as a sanction against the state was a serious matter, especially where there was no basis in the record for its decision.
' The defendant’s related claim is that he was released once the motion to dismiss was granted. Practice Book § 819 requires that when a trial court grants a motion to dismiss, it must specify whether the dismissal is with prejudice or without prejudice. The trial court did not so specify. If further clarification of this ruling were necessary, a motion for articulation could have been filed with the trial court pursuant to Practice Book § 3082. See State v. Vincent, 194 Conn. 198, 203, 479 A.2d 237 (1984).
If the trial court’s dismissal was with prejudice, the state would have had an opportunity to appeal the decision. Although Practice Book § 819 indicates that the defendant shall be released when the dismissal is with prejudice, the defendant would not have been discharged from the trial court’s jurisdiction. See State v. Ross, 189 Conn. 42, 46-47, 454 A.2d 266 (1983); State v. Avcollie, 174 Conn. 100, 107-108, 384 A.2d 315 (1977); State v. Carabetta, 106 Conn. 114, 119, 137 A. 394 (1927); State v. Ross, 39 Conn. Sup. 219, 220-21, 475 A.2d 347 (1984). If the dismissal was without prejudice, it would not have barred further prosecution for the same offenses. See Practice Book § 819.
The defendant’s second claim of error is that the trial court, Falsey, J., erred in denying his motion in arrest of judgment, pursuant to Practice Book § 905,
Under Practice Book § 905, the trial court may arrest judgment only “if the indictment or information does not charge an offense or if the judicial authority was without jurisdiction of the offense charged.” Here, the substitute information filed by the state properly charged the defendant with an offense. Furthermore, the trial court had jurisdiction over the offenses charged in the substitute information. “There is no question in the present case as to the jurisdiction of the trial court over the subject matter. It is a matter of law and can neither be waived nor conferred by consent of the accused.” (Footnote omitted.) State v. Jones, supra, 627.
There is no error.
In this opinion the other judges concurred.
The trial court was authorized to take this action under Practice Book § 747 (3).
Practice Book § 819 provides: “If the judicial authority grants a motion to dismiss, he shall specify whether the dismissal is with or without prejudice. If the dismissal is with prejudice, the defendant shall be released, and the prosecuting authority may, where he is entitled by law, appeal the dismissal in the same manner and to the same effect as appeals from final judgments in criminal prosecutions. If the dismissal is without prejudice, the defendant shall be released, but the dismissal shall not be a bar to further prosecution for the same offense or offenses.”
According to Spinella, Conn. Criminal Procedure c. 7, pp. 509-10, there is no reported decision in this jurisdiction in which a trial court has dismissed charges pending against a defendant based upon the state’s failure to comply with a discovery order.
Practice Book § 809 authorizes a trial court, for good cause, to entertain pretrial motions such as the motion for a rehearing filed in this case by the state.
Practice Book § 905 provides: “On motion of the defendant, the judicial authority shall arrest judgment if the indictment or information does not charge an offense or if the judicial authority was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made prior to the imposition of sentence.”