State v. HansonState v. Hanson
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- Before:
- Wathen
Defendant Eugenia Hills Hanson appeals from a denial by the Superior Court (Ken-nebec County) of a motion to dismiss an indictment charging her with a violation of 17-A M.R.S.A. § 303 (1983), criminal re
Following the return of an indictment in the Superior Court charging defendant with criminal restraint of her 8 year old son, defendant moved to dismiss. In her motion she alleged that prior to the issuance of the indictment she had been orderеd to appear in the district court and show cause why she should not be found in contempt for taking the child in contravention of the custody rights of the child’s natural father. She further alleged that the contempt proceeding was criminal in nature and that after hearing, the district court did not find her tо be in contempt. Attached to her motion is an attested copy of the district court motion for amendment of divorce decree and motion for contempt filed by Victor Hanson against defendant. Victor Hanson’s motion alleges that he had been granted custody of the child by order of the district court and that defendant removed the child to another state. Mr. Hanson ‘alleged that he expended effort and money in securing the return of the child and he requested that dеfendant be found in contempt, that she be required to reimburse him for his expenses, and that her visitation rights be terminated. In the margin of the motion there are notations made by the presiding judge that purport to alter visitation rights and order reimbursement. In addition there is a notation: “No contempt fоund.” The record on appeal does not contain a transcript of the Superior Cоurt proceedings nor is there any suggestion that a transcript of the district court proceedings or any part of the court’s file was offered in evidence in support of the motion to dismiss thе indictment. The Superior Court denied the motion and this appeal followed.
Appellatе review of any interlocutory ruling is an exception to the final judgment rule and must be justified by the presеnce of special policy considerations. State v. Fernald, 381 A.2d 282, 285 (Me.1978). The United States Supreme Court has concluded that a pre-trial order denying a motion to dismiss on double jeopardy grounds is immediately appealable. Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977). We arrive at the same conclusion in this case by applying the еxception to the final judgment rule that permits appeals “where substantial rights of a party will be irreparably lost if review is delayed until final judgment.” Moffett v. City of Portland, 400 A.2d 340, 343 n. 8 (Me.1979). The right to be free from exposure to doublе jeopardy requires that a challenged prosecution be subject to review beforе the exposure occurs.
On the merits, defendant argues that the meager record before us compels the conclusion that she was subjected to a criminal contempt proсeeding in the district court. In support of this conclusion, she argues that the motion filed by her husband prоves that the child had previously been returned and, therefore, if she had been found in contemрt, she would have no opportunity to “purge.” Relying on this construction, hypothesized from a fragmеnt of the record, defendant claims she will be twice placed in jeopardy if required to defend against the indictment. We need not decide whether the same proof would be required for a charge of criminal contempt as would be required for a violation of 17-A M.R.S.A. § 303, becausе the record does not demonstrate that defendant was ever placed in jeopаrdy of a charge of criminal contempt.
Assuming, without deciding, that a criminal contempt proceeding could serve as the basis for a claim of double jeopardy, the record before us fails to establish that any such proceeding was initiated. Without the record of procеedings before the district court it is not possible to determine
The entry must be:
Order denying motion to dismiss affirmed.
All concurring.