Criminal Dismissal: COM. V. GONZALEZ (COA 10/5/2007)

COM. V. GONZALEZ
CRIMINAL: DISMISSAL

2006-CA-000851
PUBLISHED: REVERSING AND REMANDING
PANEL: NICKELL PRESIDING; STUMBO, THOMPSON CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 10/05/2007

On discretionary review, CA reversed Jefferson Circuit Court and Jefferson District Court’s orders dismissing without prejudice the charges against Defendant for DUI and various traffic offenses. The issue was preserved for review by the Commonwealth’s statements to the trial court. Pursuant to RCr 9.64 and Commonwealth v. Isham, 98 S.W.3d 59 (Ky. 2003), the TC overstepped its authority by dismissing the case due to the police officer’s failure to appear in court on two occasions. The rule states "The attorney for the Commonwealth, with the permission of the court, may dismiss the indictment, information, complaint or uniform citation prior to the swearing of the jury or, in a non-jury case, prior to the swearing of the first witness. CA stated "we appreciate the high volume of cases routinely handled in district court and we are mindful of the court’s need to manage what is often an unwieldy caseload and dockets peppered with missing witnesses. However, the trial court must manage its docket while adhering to the local and state rules of court. That did not happen in this case. The district court abused its discretion and therefore we must reverse."

Note: This case highlights the Jefferson County District Court’s informal practice of dismissing cases when the prosecuting witness has repeatedly failed to appear in court. Evidently, the County Attorney has had enough of this practice, and accordingly, has been sending a message to trial courts that continue to follow it. In reality, this decision is a hollow victory for prosecutors as dockets grow and more cases get set for trial.

Digested by Scott C. Byrd
Olgin and Byrd

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