CRIMINAL LAW – DISMISSAL WITH PREJUDICE, PRETRIAL: Shannon Gibson v. Commonwealth of Kentucky (SC 6/25/2009)

Shannon Gibson v. Commonwealth of Kentucky
2007-SC-000481-DG June 25, 2009
Opinion by Justice Venters; all sitting.

Gibson was charged with theft of services over $300. On the eve of trial, the circuit court granted the prosecution’s motion to dismiss without prejudice, despite the fact that the hearing for the motion had been noticed for the following day. Gibson filed a motion to amend the order of dismissal to “with prejudice.” The Commonwealth opposed the amendment and the trial court denied Gibson’s motion. Gibson appealed, arguing that the trial court abused its discretion by not converting the dismissal to “with prejudice” and that she was now unable to demand a trial to clear her name or obtain an expungement. The Court of Appeals affirmed, holding no abuse of discretion had occurred because under the separation of power doctrine, the lower court lacked authority to designate a pretrial dismissal by the Commonwealth as “with prejudice.”

The Supreme Court affirmed, rejecting Gibson’s argument that CR 41.01 applied to criminal cases and thus authorized the relief she sought. The Court observed that under RCr 13.04 civil rules only apply to criminal cases to the extent they are not superseded or inconsistent with the criminal rules. The Court held that RCr 9.64 covered voluntary dismissal of criminal cases and thus superseded CR 41.01.

The Court further held that, unlike civil cases, criminal actions involve all three branches of state government and thus implicate the separation of powers doctrine embodied in Section 27 and 28 of the Kentucky Constitution. The executive branch is vested with the power to charge and prosecute crimes and a judge is without authority to preclude future prosecution in absence of justification 3 by substantive law. This substantive law consists of either constitutional safeguards (i.e. speedy trial, due process, double jeopardy) or where subsequent prosecution is barred by statute (i.e. KRS 505.030). The Court concluded that the trial court erred by entering the order of dismissal without affording Gibson a hearing, but that Gibson waived the error when she sought amendment of the order without requesting in the alternative that the order be dismissed and a trial on the charges be held. Justice Cunningham and Justice Scott both concurred, writing their own separate opinions. Justice Cunningham suggested Holloway might provide Appellant some “wiggle room” for expungement upon the showing of “extraordinary circumstances.” Justice Scott noted that Gibson had not asked the Court to address any questions regarding discretion or due process which could have resulted in reversal or reinstatement of the underlying indictment.

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