TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 9, 2009
RE: Rule 48, N.D.R.Crim.P., Dismissal
The Chief Justice has requested that the Committee discuss amending Rule 48 to correct a possible interpretation issue created by a recent case.
State v. Ferrie involved two persons who were arrested and subsequently bonded out. Both appeared timely at their initial appearance. Because the state had not filed charging documents, the district court dismissed the cases for failure to prosecute. A copy of the Ferrie opinion is attached.
Justice Sandstrom, joined by the Chief Justice, wrote that the district court's dismissal should be vacated because Rule 48(b) only allowed a court to dismiss "an indictment, information or complaint" and none of those documents had been filed.
Justice Kapsner concurred that the district court's dismissal should be vacated, but she disagreed with Justice Sandstrom's conclusion about the interpretation of Rule 48(b), writing at length that the rule was intended to allow dismissal of a criminal case when there had been an unreasonable delay in filing a charging document.
Justice Maring, joined by Justice Crothers, dissented, writing that the case should be remanded for further consideration of whether dismissal was appropriate. Justice Maring and Crothers, however, agreed with Justice Kapsner that Rule 48(b) allows a court to dismiss a criminal case for delay in filing the charging document.
The language of Rule 48(b) essentially echoes the language of the federal rule and a copy of Fed.R.Crim.P. 48 is attached for the Committee's reference. As discussion at the Committee's September 2008 meeting made clear, however, North Dakota defendants can be brought before the court based on a citation. Therefore, it may be appropriate to depart from the federal language to account for this apparent difference in practice.
Staff has prepared proposed amendments to Rule 48(b) that would allow the court to dismiss a "criminal action" for unreasonable delay in filing the charging document. Justice Kapsner used this term in her concurrence. Depending on how the Committee addressed the proposed changes to N.D.R.Crim.P. 3, 5 and 7, which were presented earlier in the agenda materials, different language or a different approach altogether to Rule 48 may be in order.
The proposed amendments to Rule 48 are attached.