We've Been Doing Dismissals Incorrectly For Years--Lets Fix That
by: Coconnor • April 9, 2013 • no comments
It is not uncommon in a busy call docket in Multnomah County to hear the following exchange:
- Court: “What’s the report on the [X] case?”
- Prosecutor: “The state is reporting unable to proceed”
- Court: “Is there a motion?”
- Defense Attorney: “We move to dismiss”
- Court: “The defense motion is granted. I’ll sign the dismissal. Next case is…”
At that point the defendant is handed a judgment that says “dismissal (motion of defense) granted” and is sent on his or her way.
Unfortunately this example of the dismissal process is completely impossible under all applicable statutes. There is no such basis for such a defense motion and even if this process is the combination of a noble goal to resolve the case and a misunderstanding of the statutes, there is a missing request from the defense attorney to have the dismissal entered as an acquittal. The defense attorney in the above exchange has (unless there are other tactical reasons to move to do it the non-statutory way) missed an opportunity to seek an acquittal and also gain trust with the client in an effort to block the state from charging the case later.
Ideally, no defense attorney should ever move to dismiss the case in a trial scheduling posture (again, absent some special situation, bargain or knowledge). Instead, we should be reporting ready and requesting acquittals if the state is in fact not able to proceed.
The exchange should, under the statutes, go something like this:
- Court: “What’s the report on the [X] case?”
- Prosecutor: “The state is reporting unable to proceed”
- Court: “Is there a motion?”
- Defense Attorney: “Judge, the defense is ready for trial. We ask for a jury to be called up immediately or as soon as possible. In the alternative, if the court is determining that today is the time the case is being called for trial, the legislature in ORS 136.120 has directed you to dismiss the case and we ask for a chance to argue for an acquittal under 136.130, Your Honor.”
- Prosecutor: <head explodes>
So how do we get there? Below you will find a summary of the statutes that allow for dismissal, the effects of those various types of dismissal and a list of possible scenarios combining the statutes and the effects. When thinking about a dismissal of criminal cases, you should go through the following analysis:
- What is the basis for the dismissal?
- What is the effect of the dismissal on this being charged again later and when do we have to ask for particular findings on that topic?
- Who is supposed to be making the various motions?
WAYS IN WHICH A CASE MIGHT BE DISMISSED
There are three primary ways a case may be dismissed:
First, the court "shall" dismiss the case "when the case is called for trial, the defendant appears for trial and the district attorney is not ready and does not show any sufficient cause for postponing the trial" unless the court "is of the opinion that the public interests require the accusatory instrument to be retained for trial." ORS 136.120 (emphasis added). The legislature offers no guidance on what standard the court should use in making such a decision and offers no factors to consider when making such a decision. Also, given the wide range of local court practice and rules, it is notable that the meaning of when a case is "called for trial" also remains undefined in the statute. There is, however, case law on these ambiguous statutes cited below. There is also a second analysis under this type of dismissal about whether the dismissal should in fact be in the form of an acquittal laid out in 136.130.
Second, the court "may" dismiss the case "of its own motion ... and in furtherance of justice." ORS 135.755. When the court does this it must set forth the reasons for the dismissal in the order which then must be entered in the register. Again, the Legislature gives no guidance as to the standards with which the court is to evaluate the case or what the factors to be considered might be. The timing of this motion is not specified and presumably the trial court might dismiss this case in the interest of justice even at the first appearance or upon reading a probable cause affidavit prior to the arraignment all the way until, presumably, entry of final conviction after a jury verdict.
Third, the court "may" dismiss the case "upon application of the district attorney, and in furtherance of justice." ORS 135.755. When the court does this it must set forth the reasons for the dismissal in the order which then must be entered in the register. The "may" language in this case leaves discretion for the trial court to not grant the district attorney's motion. The court can deny such a motion though there are no standards or factors given by the legislature to the court to evaluate whether or not to dismiss a case at the district attorney's request.
Notably, the next enumerated statute, ORS 135.757, explains that option three as listed above is the only method for the state to discontinue prosecution. ORS 135.757 abolishes the old "nolle prosequi" option of dismissal and creates a law in which "[t]he district attorney cannot discontinue or abandon a prosecution for a crime, except as provided in ORS 135.755." Given this limitation, the ultimate decision regarding dismissal of the case is in the control of the trial court who "may" dismiss it if the interests of justice are to be furthered or shall dismiss it when the case is called for trial and the state reports that they are unable to proceed. The statutes read together list no requirement that the court grant the state's motion of dismissal in the interests of justice. Pre-trial, the prosecution must continue until the judge agrees that it is in the interest of justice that it not continue and grants a dismissal.
THE EFFECTS OF THE VARIOUS TYPES OF DISMISSALS
If the case is dismissed under 136.120 ('when the case is called for trial, the defendant appears for trial and the district attorney is not ready and does not show any sufficient cause for postponing the trial') there is a statute that governs the effects of such a dismissal. ORS 136.130 requires that if the instrument dismissed charges a felony or a Class A misdemeanor, the order is "not a bar to another action for the same crime 'unless the court so directs." ORS 136.130 (emphasis added). The statue goes on to note that if the court does so direct, a judgment of acquittal shall be entered. The legislature has yet again left the court and attorneys without any standards or factors to base such a decision on. There is, however, caselaw on these ambiguous statutes discussed below.
If the case is dismissed under ORS 135.755 (the court on its own motion or per the district attorney's motion dismisses in furtherance of justice) the effects of the dismissal are laid out in ORS 135.753(2). That statute states that "An order for the dismissal of a charge or action as provided in [ORS 135.755] is a bar to another prosecution for the same crime if the crime is a Class B or C misdemeanor; but it is not a bar if the crime charged is a Class A misdemeanor or a felony." Notably, there is no option for the court to direct otherwise as there is in ORS 136.130.
OPTIONS FOR THE COURT WHEN FACED WITH VARIOUS MOTIONS FOR DISMISSAL OF A CHARGE CLASSIFIED AS A 'CLASS A' MISDEMEANOR
Given the dismissal options and the effects of each option there are several scenarios in which a court might find itself as regards dismissal. An exploration of each scenario is valuable to layout the possible paths a case might follow.
136.120 and 136.130 Options:
- The state declares that they are not able to proceed when the case is called for trial (again, it is not clear in the statute when a case is "called" for trial) and the court dismisses the charges. Without further pronouncement by the court the case can be filed again. Note that this option is frequently used in Multnomah County at pre-trial conferences, further proceedings, or even call the day before trial when the statute seems not to apply because the case is not actually being “called for trial”. This is frequently recorded as a dismissal per the motion of defense counsel, which is incorrect. If properly used it is simply a dismissal (or acquittal) by the court after the state’s report of being unable to proceed.
- The state declares that they are not able to proceed when the case is called for trial but the court directs that this dismissal is a barrier to further prosecution and enters in a judgment of acquittal. No further charges can be filed again. Few attorneys ask for an acquittal in this situation but probably should.
- The state declares that they are not able to proceed to trial, but the court decides that it is in the public interest to retain the case for trial and so declines to dismiss the case and instead retains the case for trial and the trial proceeds in the normal course. Presumably without the witnesses or evidence needed by the state and acquittal would ultimately occur in the context of a trial.
135.755 Options:
- The court, on its own motion, dismisses the case in the interest of justice and enters the reasons it is being dismissed in furtherance of justice on an order and files the order in the register. This is not a bar to further prosecution by the district attorney.
- The court, on the motion of the district attorney, dismisses the case in the interest of justice and enters the reasons it is being dismissed in furtherance of justice on an order and files the order in the register. This is not a bar to further prosecution by the district attorney.
- The district attorney moves for dismissal, but the dismissal is denied by the court (noting that the language is 'may' not 'shall'). As such it would seem the case would likely proceed to trial and presumably without the witnesses or evidence needed by the state an acquittal would ultimately occur in the context of a trial.
CASELAW
There are Court of Appeals cases that guide the court on the interpretation of the statutes.
State v. Reeder, 135 Or App 387 (1995), simply reviews a situation in which the Court of Appeals has no record of the hearing regarding dismissal. The Court of Appeals simply noted that in Reeder the trial court could not have been acting under 136.120 and 136.130 because no acquittal was entered. It also notes that the case could not have been dismissed with prejudice under 135.755 because that is not an option.
Regarding the standard by which the court should consider entering an acquittal and barring further prosecution of the case, the case of State v. Love, 38 Or App 459 (1979), is very instructive. In Love, the Court of Appeals discussed the 136.130 dismissal with prejudice and summarized previous case law as follows:
- "The discretion granted by this section is not absolute. There must be a reason for an order barring reindictment. As we said in State v. Williams, 17 Or App 43, 48 (1974): 'The power to bar prosecution, with all its attendant public consequences, is a drastic one to be exercised only in exceptional circumstances.' Accordingly, the reason, in order to justify dismissal with prejudice, must be substantial. Cf, State v. Willingham, 13 Or App 504, 510 p.2d 133 (1973)."
The case of State v. Gutierrez, 170 Or App 91 (2000), will no doubt be cited by the state in response to effort to ban recharging of a particular case. Gutierrez does not answer much for a reader in that situation, though it points to other caselaw. Gutierrez involved a situation again where the trial court attempted to enter a dismissal under 135.755 with prejudice despite the fact that the statute allows for no such scenario.
Gutierrez is notable, however for its summary of the "called for trial" language of 136.120. In Gutierrez, the Court of Appeals notes that because the dismissal in question occurred the day before trial the case had not yet been 'called' for trial and therefore was in a pretrial posture and 136.120 did not yet apply. See Gutierrez, 170 Or App at 96 & n8. Accordingly, it is therefore possible in Multnomah County Circuit court that reporting unready at morning 'call' the day prior to trial should not result in a dismissal under 136.120. The state should instead send the case out to the actual trial date and report unable the actual day of trial. "Called for trial" appears to not necessarily be equivalent to a "call" date set by the local court in the day or days prior to trial. One could read Gutierrez to require that the case is "called for trial" only when the judge is ready to begin the actual trial.
