RULE 48. DISMISSAL

Rule 48 was amended, effective March 1, 2006; March 1, 2010.

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 be terminated. The first is dismissal by the prosecuting attorney under subdivision (a); the second is dismissal or release by the court for delay in prosecution under subdivision (b).

Subdivision (a) permits the prosecuting attorney to dismiss a charge against an individual if the requirements established under this subdivision are met. Those requirements are: (1) a motion be made and supported by a written statement concisely stating the reasons for the motion; (2) the court gives its approval; and (3) the defendant if trial has begun consents to the dismissal. Under the 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.

Subdivision (b) is a codification of the inherent power of the court to dismiss a case or release an arrested person for want of prosecution. Subdivision (b) thus acts as a vehicle for enforcing the Sixth Amendment right to a speedy trial. 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.

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 rule does not apply to delays that take place between the commission of an offense and the initiation of the proceeding.

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. As utilized by the courts, however, the causal factor actually encompasses two issues: (1) who caused the delay, and (2) the motives or reasons for the delay.

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.

Dismissal for want of speedy trial bars all further prosecution for the same offense. If, however, the dismissal is under subdivision (b) for unnecessary delay not amounting to a denial of the constitutional right, 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.

Subdivision (b) was amended, effective March 1, 2010, to add a reference to the uniform complaint and summons.

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 January 29-30, 2009, pages 9-11; April 28-29, 2005, page 9; April 24-26, 1973, pages 15-17; February 20-23, 1973, pages 8-10; September 17-18, 1970, pages 10-17; Fed.R.Crim.P. 48; Colo. Crim. P. 48.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C. ch. 29-18.

CONSIDERED: N.D.C.C. § 29-04-05.