RULE 48. DISMISSAL
(a) By Prosecuting Attorney.
No criminal case pending in any court shall be
any The prosecuting attorney may not dismiss an indictment, information
except upon on motion and with the court's approval. Such
a A motion shall to dismiss must
be supported by a written statement concisely stating the reasons for the motion. The
statement shall must be filed with the record of the
case clerk and be open to public
inspection. A dismissal The prosecuting attorney may not be
ordered dismiss a criminal case
during the trial without the defendant's consent.
(b) By the Court.
If there is The court may dismiss an indictment,
information or complaint
if unnecessary delay occurs in:
the a charge to a grand jury;
or in filing an information or complaint against a defendant
who has been arrested or
for whose arrest a warrant has been issued ,; or
if there is unnecessary delay in bringing a defendant to
trial , the court may dismiss the
indictment, information, or complaint.
Rule 48 was amended, effective March 1, 2006.
Although N.D.R.Crim.P. 48(a) follows Fed.R.Crim.P. 48, it is an
adaptation of the
language of Rule 48 of the Colorado Rules of Criminal Procedure (1964), while Subdivision
(b) with certain modifications is an adaptation of the language of Fed.R.Crim.P. 48(b).
Rule 48 is adapted from the federal rule. The requirement in subdivision (a) that the
prosecutor make a written statement to support any dismissal motion is modeled on
Colo.R.Crim.P. 48. Rule 48 contemplates two means by which a prosecution may
terminated. The first is dismissal by the prosecuting attorney under Subdivision
(a); the second is dismissal by the court for delay in prosecution under
Subdivision (a) permits the prosecuting attorney to dismiss a charge against an individual
if the requirements established under this
Subdivision subdivision are
requirements are: (1) that a motion must be made and
supported by a written statement
concisely stating the reasons for the motion; (2) that the court must
give gives its approval;
and (3) that the defendant if trial has begun must consent
consents to the dismissal. Under
the Rule rule, once an action has commenced a defendant has a right to
insist on a
disposition on the merits. Subdivision (a), requiring the court's consent to dismissal, is
designed to prevent harassment of a defendant by charging, dismissing and recharging
without placing a defendant in jeopardy. [8A Moore's Federal Practice, page 48-3
2d Ed. 1972), citing United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965), cert. denied,
381 U.S. 935, 85 S. Ct. 1767, 14 L. Ed. 2d 700 (1965); see also, Klopfer v. North Carolina,
386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967), in which the U.S. Supreme Court held
that this type of harassment of a defendant is subject to control by application of the speedy-trial
clause of the Sixth Amendment, which has been made obligatory upon the States by the
Subdivision (b) is a codification of the inherent power of the court to dismiss a case for
want of prosecution.
[See Advisory Committee Note to Rule 48(b), citing Ex Parte
34 F.Supp. 106 (D. Cal. 1940); see also Rule 41(b), N.D.R.Civ.P.] Subdivision (b) thus
as a vehicle for enforcing the Sixth Amendment right to a speedy trial. [Mann v. United
States, 113 App. D.C. 27, 304 F.2d 394, 398, cert. denied, 371 U.S. 896, 83 S. Ct. 194, 9 L.
Ed. 2d 127 (1962).] The court can dismiss whenever there has been unnecessary delay
without being required to decide whether the unnecessary delay was of such a nature as to
deprive the defendant of a constitutional right. [Wright, supra, citing Mann v. United
Subdivision (b) provides for dismissal of prosecution in the following situations: (1) if a
defendant has been arrested and there is unnecessary delay in presenting the charge against
him to a grand jury or in filing an information or complaint against him, and (2) dismissal
of an indictment, information, or complaint where there is unnecessary delay in bringing a
defendant to trial. The
Rules rule does not apply to delays
which that take place between the
commission of an offense and the initiation of the proceeding [8A Moore's, supra, citing
Nickens v. United States, 116 U.S. App. D.C. 338, 323 F.2d 808, 809 (1963), cert. denied,
379 U.S. 905, 85 S. Ct. 198, 13 L. Ed. 2d 178 (1964)], nor to delays during the trial
(Smith v. United States, 331 F.2d 784, 793 (D.C. Cir. 1964) (concurring
Generally, four factors may be considered relevant in determining whether the right to a
speedy trial has been denied:
"the length of delay, the reason for delay, the
prejudice to the
defendant, and waiver by the defendant. " [Wright, supra, § 813 at page 307, citing
United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2nd Cir. 1963).] As utilized
the courts, however, the causal factor actually encompasses two issues: (1) who caused the
delay, and (2) the motives or reasons for the delay. [The Right to Speedy Trial, 1968, 20
Stan. L. Rev. 476, 478 n. 15.]
A defendant can waive his speedy trial claim in four ways: (1) by failing to present the
claim prior to or at the trial, (2) by entering a voluntary plea of guilty, (3) by failing to
"demand " a prompt trial, or (4) by expressly consenting to
the delay. The first two forms of
waiver have no relevance to the reasonableness of the delay in bringing the defendant to
trial; they are merely procedural rules designed to give finality to criminal convictions.
Although the last two forms of waiver do have some relevance to the reasonableness of a
delay, they have no independent significance. Under the demand doctrine a defendant must
preserve his right to a speedy trial by taking in open court some affirmative action--such as
objecting to the trial adjournment or demanding that he be brought to trial. Any delay
occurring before such action has been taken cannot be challenged even though it may have
been unreasonable. Thus, waiver cannot be considered a substantive factor in a speedy-trial
determination. [The Right to Speedy Trial, 1968, 20 Stan. L. Rev. 476,
Dismissal for want of speedy trial bars all further prosecution for the same offense
v. United States, supra, at page 397]. If, however, the dismissal is under
subdivision (b) for unnecessary delay not amounting to a denial of the constitutional
the dismissal can be without prejudice. In granting dismissal, the court should articulate
clearly whether it is constitutionally compelled, and if not, whether it is with or without
prejudice, so that the defendant will know whether the sword of Damocles still hangs over
him. Dismissal with prejudice bars further prosecution. [Wright, supra, citing Mann v.
United States, supra, at page 398.]
Rule 48 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
SOURCES: Joint Procedure Committee Minutes of April 28-29, 2005, page 9;
1973, pages 15-17; February 20-23, 1973, pages 8-10; September 17-18, 1970, pages 10-17;
Rule 48, Colo. R. Crim. P. (Approved Draft, 1964); 18 U.S.C.A.,
Fed.R.Crim.P. 48; Colo.
Crim. P. 48 , page 255; Wright, Federal Practice and Procedure: Criminal, §
§ 811-815 (1969); 8A Moore's Federal Practice, Chapter 45 (Cipes, 2d Ed. 1971); A.B.A.
Standards for Criminal Justice, Standards Relating to Speedy Trial, § 4.1 (Approved
SUPERSEDED: N.D.C.C. ch. 29-18.
CONSIDERED: N.D.C.C. § 29-04-05.