COM. V. HILL
CRIMINAL: Dismissal by Trial Court
2006-CA-000708
PUBLISHED: VACATING AND REMANDING
JUDGES: DIXON (PJ); MOORE, TAYLOR CONCURRING
KENTON COUNTY
DATE RENDERED: 6/8/2007

CA vacated and remanded TC’s dismissal of PFO indictment after Commonwealth moved for continuance of trial date on underlying charges. Kentucky Rules of Criminal Procedure (RCr) 9.64 vests only the prosecution with the authority to dismiss an indictment. However, in Commonwealth v. Baker, 11 S.W.3d 585 (Ky.App. 2000), CA recognized the inherent authority of a trial court to dismiss an indictment when prosecutorial misconduct taints grand jury proceedings. Id. at 589. The Baker Court summarized the proof required to dismiss an indictment: “Generally, a defendant must demonstrate a flagrant abuse of the grand jury process that resulted in both actual prejudice and deprived the grand jury of autonomous and unbiased judgment.” Id. at 588. While there are no allegations of grand jury impropriety in the case sub judice, we find the reasoning of Baker instructive. After reviewing the hearing in this case, it appears the court implicitly found Hill would be prejudiced if required to proceed with the PFO charge and essentially invited Hill to request a dismissal. However, other than the trial judge’s assertions of “gross misuse,” the record offers no evidence that the prosecutor asked for a continuance in bad faith or otherwise engaged in misconduct. In this case, we recognize the trial court’s displeasure with the prosecutor for postponing trial and then bringing an additional charge against Hill. However, the very nature of a PFO charge “involve[s] the status of the offender and the length of the punishment, not a separate or independent criminal offense.” White v. Commonwealth, 770 S.W.2d 222, 224 (Ky. 1989). Likewise, because a PFO charge is a status offense, a defendant can be subject to retrial without violating the constitutional provisions against double jeopardy. Id. Consequently, we must reverse the order of Kenton Circuit Court dismissing the PFO charge against Hill.

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