GIBSON V. COM.
CRIMINAL:  Dismissal with Prejudice
2006-CA-001147
PUBLISHED: AFFIRMING
JUDGES:  VANMETER (PJ); PAISLEY CONCURS; THOMPSON CONCURS W/RESULT ONLY FILING SEP. OPINION
GRAYSON
DATE RENDERED: 6/8/2007

The issue in this case is whether a TC has the discretion to order, over the objection of the Commonwealth, that a dismissal of a criminal indictment is with prejudice. KRS 505.030 appears to curtail the court’s ability to limit further prosecutions for an indictment which was dismissed under RCr 9.64. This statute sets out four circumstances which serve to bar a subsequent prosecution:

(1) The former prosecution resulted in:

(a) An acquittal, or

(b) A conviction which has not subsequently been set aside; or

(2) The former prosecution resulted in a determination by the court that there was insufficient evidence to warrant a conviction; or

(3) The former prosecution was terminated by a final order or judgment, which has not subsequently been set aside, and which required a determination inconsistent with any fact or legal proposition necessary to a

conviction in the subsequent prosecution; or

(4) The former prosecution was improperly terminated after the first witness was sworn but before findings were rendered by a trier of fact. Termination under either of the following circumstances is not improper.

(a) The defendant expressly consents to the termination or by motion for mistrial or in some other manner waives his right to object to the termination; or

(b) The trial court, in exercise of its discretion, finds that the termination is manifestly necessary.

Only KRS 505.030(2) approaches the scenario implicitly urged by Gibson, i.e., “a determination by the court that there was insufficient evidence to warrant a conviction[.]” The commentary to KRS 505.030, however, makes clear that this determination is made only when the trial court, “after hearing the evidence, [concludes] that the defendant’s conviction would have been unwarranted.” Such a situation would occur in a criminal trial after the presentation of evidence with a motion for a directed verdict.

Digested by Scott Byrd @ www.OlginandByrd.com