State v. FerrieState v. Ferrie
- Reporters:
- , , ,
- Before:
- Vande Walle Sandstrom
Lead Opinion
[¶ 1] The State appeals from district court orders dismissing the cases against Brian Ferrie and Liyandza Williams. We conclude the district court erred in dismissing the cases under
I
[¶ 2] On November 24, 2007, Ferrie was arrested for driving under the influence, possession of drug paraphernalia, and possession of a controlled substance. Ferrie posted bond and was given notice to appear in court on December 7, 2007. On December 2, 2007, Williams was arrested for criminal trespass. Williams posted bond and was given notice to appear in court on December 7, 2007.
[¶ 3] Ferrie and Williams appeared in court on December 7, 2007, and the court dismissed the cases for failure to prosecute because the State had not filed any charging documents in either case. The court subsequently entered orders dismissing the cases with prejudice, because “[t]he State failed to file the charging documents or take any action to prosecute the case.”
[¶ 4] The district court generally has jurisdiction to hear criminal eases under
II
[¶ 5] The State argues the district court erred in dismissing the cases with prejudice because a dismissal with prejudice should be used only in extreme circumstances, the court did not give the State notice of its intent to dismiss and an opportunity to respond, and the delay in filing the information was not an unnecessary delay as
[¶ 6] We review a district court’s decision to dismiss a criminal case with prejudice for an abuse of discretion. State v. Tweeten, 2004 ND 90, ¶ 7, 679 N.W.2d 287. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Id.
[¶ 7] The district court must have a sufficient legal basis to dismiss a criminal charge. See State v. Stuart, 544 N.W.2d 158, 162 (N.D.1996). In this case, the court dismissed the cases under
The court may dismiss an indictment, information or complaint if unnecessary delay occurs in:
(1) presenting a charge to a grand jury;
(2) filing an information or complaint against a defendant who has been arrested or for whose arrest a warrant has been issued; or
(3) bringing a defendant to trial.
[¶ 8] When we interpret court rules, we apply the rules of statutory construction and look at the language of the rule first to determine the meaning. Ols-
[¶ 9]
[¶ 10] Given the plain language of the rule, we conclude
[¶ 11] In this case, the district court records for William’s and Feme’s cases include a sign-in sheet for each defendant from the initial appearance and the court’s orders of dismissal; however, an indictment, information, or complaint was not filed for either Williams or Ferrie.
[¶ 12] Instead of dismissing the cases, the district court could have discharged each defendant’s bond and relеased the defendants because there were not any charges pending. After charging documents are filed, the court could give the State notice that it may dismiss the cases with prejudice because there was an unnecessary delay in filing the informations or complaints. We recognize this places a burden on a defendant because the defen
[¶ 13] District courts have broad discretion in deciding when sanctions are appropriate and what sanctions are appropriate, and the court should consider alternative sanctions before dismissing a case. Snellman, 1998 ND 200, ¶ 9, 586 N.W.2d 494. Alternative sanctions may be appropriate in cases such as this. Although we conclude the district court erred in dismissing these cases under
Ill
[¶ 14] We conclude the district court abused its discretion in dismissing the cases against Ferrie and Williams under
Concurrence Opinion
concurring in the result.
[¶ 16] I concur with the result reached by the majority, but disagree with the majority’s analysis.
[¶ 17] The majority incorrectly asserts the prosecution is initiated and a ease is pending when a complaint, information, or indictment is filed. Majority Opinion at ¶ 9. However,
[¶ 18] Contrary to the analysis of the majority, the plain language of
Subdivision (b) is a codification of the inherent power of the court to dismiss a case for want of prosecution. Subdivision (b) thus acts as a vehicle for enforcing the Sixth Amendment right to a speedy trial. ’ The court can dismiss whenever there has been unnecessary delay without being required tо decide whether the unnecessary delay was ofsuch a nature as to deprive the defendant of a constitutional right.
Subdivision (b) provides for dismissal of prosecution in the following situation[ ]: ... if a defendant has been arrested and there is unnecessary delay in presenting the charge against him to a grand jury or in filing an information or complaint against him[J
[¶ 19] Further, the history of the Rule establishes it was intended to apply to post-arrest situations, regardless of whether a charging document has been filed. When the Joint Procedure Committee adopted
[¶ 20] The Joint Procedure Committee discussed
If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.
Minutes of the Joint Procedure Comm. 10 (Sept. 17, 1970) (quoting F.R.Crim.P. 48(b)). The Committee considered the meaning of the phrase “held to answer,” then used in the Federal Rule, and concluded the phrase was too limiting. Regarding the phrase “held to answer,” the Committee minutes provide:
Judge Smith then made a motion to amend 48(b) by deleting all the words in the last line after “the” and inserting the word “prosecution”, so the amended subsection would read: “(b) By Court. If there is unnecеssary delay in presenting the charge to a grand jury or in filing an information or complaint against a defendant who has been arrested or for whose arrest a warrant has been issued, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the prosecution.” The motion was seconded by Mr. Shaft.
During the discussion that followed, the Committee was unable to agree whether “has been held to a answer to the court” meаns an action of the court or of an arresting officer. Mr. Vogel read from 8A Moore’s Federal Practice 48-12, note 5:
“A defendant is held to answer or ‘bound over’ by a finding of probable cause by the commissioner, or by a waiver of preliminary examination.Rule 5(c) .Rule 48(b) does not apply to delay in according a defendant a preliminary examination. The remedy for such delay would be habeas corpus, if detained, and a motion made to the commissioner to dismiss the complaint. See 5.04[3] supra. Cf. Crow v. United States (C.A.8th.1963) 323 F.2d 888, 891 (motion erroneously made to district court).”
Mr. Sand moved to amend Judge Smith’s motion to amend by deleting the words “been held to answer to the court” and substituting “been arrested”. Mr. Graham seconded Mr. Sand’s motion.
Judge Smith brought up the matter of a warrant for arrest against somebody in prison in another state. If the rule is limited to “after arrest”, he would not have a right to move for trial in this state and would not have right to speedy trial.
Mr. Sand withdrew the motion which Mr. Graham had seconded. Mr. Graham proposed a substitute motion to Judge Smith’s earlier motion, to delete “held to answer to the district court” and insert the words “arrest or for whose arrest a warrant has been issued”, and in the last line delete the words “indictment, information or complaint” and insert the word “prosecution”. Judge Smith seconded the substitute motion.
Mr. Shaft suggested the rule was becoming completely contrary to the federal rule as construed by the court. His was the only vote in opposition to the substitute motion. In favor were Judge Muggli, Mr. Vogel, Judge Smith, Mr. Graham, and Mr. Sand.
Minutes of the Joint Procedure Comm. 15 (Sept. 17, 1970). The minutes suggest the Committee removed the language “held to answer” because the phrase was too limiting since speedy trial concerns may arise earlier than the indictment. The Committee reviewed the concurrence of Justice Harlan in Dickey v. Florida, 398 U.S. 30, 44-45, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (citations omitted):
Does the speedy-trial guarantee apply to all delays between a defendant’s arrest and his sentencing? The view that it does is not without support in the wording of the Sixth Amendment. The Constitution says that an “accused” is entitled to a speedy trial “(i)n all criminal prosecutions.” Can it be that one becomes an “accused” only after he is indicted, or that the Sixth Amendment subdivides “prosecution” into various stages, granting the right to speedy trial in some and withholding it in others? In related contеxts involving other clauses of the Sixth Amendment, we have held that the “prosecution” of an “accused” can begin before his indictment; for example, in Escobedo v. Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), we spoke of the time when “investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect.” And as regards realization of the purposes of the Speedy Trial Clause, the possibility of harm to interests protected by the clause is certainly great whenever delay occurs after arrest.
The Committee’s concern that
[¶ 21] Considering when the right to a speedy trial attaches, the Committee discussed Moore’s Federal Practice, which provided: “
[¶22] The section of Moore’s Federal Practice cited by the Committee in its 1970 minutes has been updated, and now provides: “The speedy trial right attaches from the commencement of prosecution, whether by arrest, indictment, information, or complaint.” 28 James Wm. Moore et al., Moore’s Federal Practice § 648.03[3][a] (3d. ed.2008), (citing United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (emphasis added)). The Marion decision interpreted F.R.Crim.P. 48(b). Marion, 404 U.S. at 319, 92 S.Ct. 455 (citing F.R.Crim.P. 48(b)). The explanatory note to
[¶ 23] In 1973, the Committee amended
Judge Pearce referred to the language in subdivision (b) which reads “... the court may dismiss the prosecution.” He said that a prosecution is not “dismissed” — the charging document is dismissed, the prosecution may be “terminated”. Judge Pearce MOVED to strike the word “prosecution” and insert “indictment, information or complaint”. Seconded by John Graham. Mr. Graham objected to such change and suggested instead substituting the word “terminate ” in lieu of “dismiss”. Judge Erickstad questioned the legal significance of the word “terminate”. Judge Pearce said subdivision (b) is comparable with the Federal Rule.
Judge Burdick suggested striking the language “... in presenting the charge to a grand jury or”. Mr. Sand MOVED to further amend subdivision (b) by striking the language “in presenting ... jury or”. Judge Smith seconded Mr. Sand’s motion to amend; the motion CARRIED unanimously.
Mr. Sand suggested changing the word “is” to “was” in line 4 of subdivision (b). No action.
There was discussion re Judge Pearce’s motion to amend. The motion CARRIED, with two dissenting votes.
Mr. Shaft MOVED to adopt Rule ⅛8 as amended. Second by Judge Pearce. Motion CARRIED unanimously.
Id. Thus, the plain language of
[¶ 24] Case law indicates the application of
[1125] In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court established a balancing test for courts to utilize when analyzing whether a defendant has been deprived of the right to a speedy trial guaranteed by the Sixth Amendment. Id. The Court in Barker provided four factors should bе balanced: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. The United States Supreme Court discussed the factors in Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), where it held: “The first [factor] is actually a double enquiry. Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay[.]”
[¶ 26] The district court had authority to dismiss the criminal actions under
[¶ 27] Second,
[¶ 28] In the present cases, the delays were minimal. Both cases were dismissed on December 7, 2007. Williams was arrested on December 2, 2007. This delay amounted to five working days. Ferrie was taken into custody on November 24, 2007. This delay was ten working days. Neither of the delays were presumptively prejudicial, and neither appear to be unnecessary. Therefore, the district court abused its discretion by dismissing the cases, because unnecessary delay had not occurred.
[¶ 29] Third, the last factor from Barker is “prejudice to the defendant.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. The purpose of this factor is to protect three interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the dеfense will be impaired.” Moran, at ¶ 17 (citing Barker, 407 U.S. at 532, 92 S.Ct. 2182); see United States v. MacDonald, 456 U.S. 1, 7-9, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). Both Williams and Ferrie posted bond and were released on the same day of their arrest. Thus, the first interest does not apply to either defendant. Additionally, the delays in both cases were quite minimal; therefore, it cannot reasonably be concluded, nor did the district court indicate in dismissing the cases, that the delays caused anxiety and concern of the accused, or impaired the defendants’ defеnses. The district court abused its discretion by dismissing the cases, and I concur in the result of the majority opinion.
[¶ 30] Carol Ronning Kapsner
Dissenting Opinion
dissenting.
[¶ 31] I respectfully dissent from the majority opinion. First, the State never argued the district court was without authority under
[¶ 32] In City of Jamestown v. Snellman, 1998 ND 200, ¶¶ 9-11, 586 N.W.2d 494, our Court held that before the district court could dismiss the cases it must give the parties notice of its intent to do so and an opportunity to respond. Here, the district court failed to give prior notice to the State and an opportunity to respond. I do note that surprisingly the record indicates thаt, at the time of the dismissals, the State never even objected to the action taken by the district court sua sponte. I would reverse the order of dismissal because the district court did not give notice to the State of its intent to dismiss.
[¶ 38] I would remand the case to the district court to give proper notice and to provide both parties the opportunity to respond. The State could present at that time the reasons therе has not been unnecessary delay in filing an information or complaint. The defendants could present evidence of prejudice.
[¶34] I disagree with Justice Kaps-ner’s analysis and application of the four factor balancing test in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) to the present case. This Court has never addressed what test should be applied to a right to a “speedy” indictment, information or complaint post arrest. I am of the opinion that the district court should hold a hearing after notice to the parties and make its own findings. I also am of the opinion that “a court’s power to dismiss under
[¶ 35] The order of dismissal should be reversed and the cases remanded-to the district court to provide notice to the parties and for further proceedings in accordance with the law.
[¶ 36] Mary Muehlen Maring, Daniel J. Crothers