State v. MacNeill , 717 Utah Adv. Rep. 45 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20090863‐CA
)
v. ) FILED
) (September 20, 2012)
Martin MacNeill, )
) 2012 UT App 263Defendant and Appellant. )
‐‐‐‐‐
Fourth District, Provo Department, 091400178
The Honorable Samuel D. McVey
Attorneys: Randall K. Spencer and Stephanie L. O’Brien, Provo, for Appellant
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges McHugh, Orme, and Christiansen.
ORME, Judge:
¶1 Defendant Martin MacNeill appeals the trial court’s denial of his motion to
quash bindover. Defendant argues that Rule 25 of the Utah Rules of Criminal
Procedure bars refiling the charges against him eight months after they were initially
dismissed. Defendant also contends that the refiling violated his due process rights and
his right to a speedy trial. We affirm.
BACKGROUND
¶2 The State charged Defendant with forcible sexual abuse, pursuant to Utah Code
section 76‐5‐404, and witness tampering, pursuant to Utah Code section 76‐8‐508. See
Utah Code Ann. § 76‐5‐404 (Supp. 2012); id. § 76‐8‐508 (2008).1 After conducting a
preliminary hearing and finding probable cause for the charged offenses, Judge Claudia
Laycock, acting as a magistrate, bound Defendant over to district court for trial. The
case was assigned to Judge Laycock, who scheduled a four‐day jury trial. Two weeks
before trial, however, the State moved to dismiss the charges without prejudice. It did
not provide any explanation for its request. Defense counsel did not oppose the motion,
and neither the court nor defense counsel sought an explanation for the State’s
requested dismissal. The court granted the motion without specifying whether the
dismissal was with or without prejudice, stating only that the case was dismissed “upon
good cause appearing.”
¶3 Four months after the criminal charges were dismissed, the Utah State Bar’s
Office of Professional Conduct (OPC) undertook an investigation of Defendant, a
lawyer, stemming from accusations of misconduct related to the dismissed criminal
charges. In the course of its investigation, OPC contacted the State seeking information
regarding the charges. OPC then wrote a letter explaining that it was dismissing the
Bar complaints against Defendant because the State had dismissed the criminal charges
against him. The letter also characterized the dismissal as being due to the State “not
believ[ing] that they had a good faith basis to proceed with this case.”
¶4 Eight months after the dismissal, the State refiled the same charges against
Defendant. Defendant unsuccessfully moved to have the charges dismissed on the
basis that refiling them was a violation of his rights to due process and a speedy trial.
The parties stipulated that bindover on the refiled charges could proceed based on the
transcript of the original preliminary hearing. The case was then set to be tried before
Judge Samuel D. McVey. Defendant sought, unsuccessfully, to have the case moved
back to Judge Laycock’s docket. Defendant then filed a motion to quash the bindover,
rearguing his due process and speedy trial claims. See Utah R. Crim. P. 25. Judge
McVey denied Defendant’s motion to quash. Finally, Defendant petitioned this court
for permission to appeal the interlocutory order denying the motion to quash, and we
granted the petition.
1
Because the provisions in effect at the relevant time do not differ materially from
the statutory provisions now if effect, we cite to the current version of the Utah code as
a convenience to the reader.
20090863‐CA 2
ISSUES AND STANDARDS OF REVIEW
¶5 On appeal, Defendant argues that Rule 25 of the Utah Rules of Criminal
Procedure bars the State from refiling the charges against him because Rule 25 does not
expressly authorize refiling in cases like this. Defendant also argues that the court
failed to comply with Rule 25 by not listing a specific reason for dismissing the charges.
Accordingly, we must interpret Rule 25 to determine under what circumstances it bars
the State from refiling charges that were dismissed pursuant to the rule. See Utah R.
Crim. P. 25(a). “The proper interpretation of a rule of procedure is a question of law,
and we review the trial court’s decision for correctness.” Ostler v. Buhler, 1999 UT 99,
¶ 5, 989 P.2d 1073.
¶6 Next, Defendant argues that, wholly apart from the Rule 25 violations he alleges,
the State violated his due process rights when it dismissed the case, only to refile again
eight months later. Specifically, Defendant cites the requirements of State v. Brickey, 714
P.2d 644, 647–48 (Utah 1986), and argues that the State was required to follow the
refiling mandates outlined there but failed to do so. “Interpretation of case law presents
a question of law which is reviewed for correctness.” State v. Atencio, 2004 UT App 93,
¶ 7, 89 P.3d 191 (citing State v. Morgan, 2001 UT 87, ¶ 1, 34 P.3d 767).
¶7 Finally, Defendant argues that his right to a speedy trial has been violated.
“Whether a defendant’s right to a speedy trial has been violated presents a question of
law, which we review for correctness.” State v. Steele, 2010 UT App 185, ¶ 14, 236 P.3d
161.
ANALYSIS
I. Rule 25 of the Utah Rules of Criminal Procedure Did Not Require that the Charges
Be Dismissed with Prejudice.
¶8 Defendant contends that Rule 25 of the Utah Rules of Criminal Procedure barred
the State from refiling the charges against him. Rule 25 provides:
(a) In its discretion, for substantial cause and in furtherance
of justice, the court may, either on its own initiative or upon
20090863‐CA 3
application of either party, order an information or
indictment dismissed.
(b) The court shall dismiss the information or indictment
when:
(1) There is unreasonable or unconstitutional
delay in bringing defendant to trial;
(2) The allegations of the information or
indictment, together with any bill of particulars
furnished in support thereof, do not constitute
the offense intended to be charged in the
pleading so filed;
(3) It appears that there was a substantial and
prejudicial defect in the impaneling or in the
proceedings relating to the grand jury;
(4) The court is without jurisdiction; or
(5) The prosecution is barred by the statute of
limitations.
(c) The reasons for any such dismissal shall be set forth in an
order and entered in the minutes.
(d) If the dismissal is based upon the grounds that there was
unreasonable delay, or the court is without jurisdiction, or
the offense was not properly alleged in the information or
indictment, or there was a defect in the impaneling or of the
proceedings relating to the grand jury, further prosecution
for the offense shall not be barred and the court may make
such orders with respect to the custody of the defendant
pending the filing of new charges as the interest of justice
may require. Otherwise the defendant shall be discharged
and bail exonerated.
20090863‐CA 4
An order of dismissal based upon unconstitutional
delay in bringing the defendant to trial or based upon the
statute of limitations, shall be a bar to any other prosecution
for the offense charged.
Utah R. Crim. P. 25(a)–(d) (emphasis added). Defendant argues that when a case is
dismissed under Rule 25 without a trial, the case may not be refiled unless it meets one
of the exceptions enumerated in part (d) of the rule. See id. R. 25(d). Defendant’s
argument appears to be one of expressio unius est exclusio alterius, i.e., that where the
Legislature went to the effort to include a list of exceptions allowing the refiling of
charges after dismissal for some reasons, it surely did not mean to allow refiling for
other reasons. Thus, Defendant argues that the list was intended to be exhaustive so
that Rule 25 incorporates a presumption against refiling unless expressly authorized in
part (d) of the rule. See id. While we understand the logic of this argument, a careful
reading of the text, in the context of the rule’s organization, provides a stronger basis for
a different interpretation.
¶9 Rule 25 describes two possible categories of dismissals: discretionary and
mandatory. See id. R. 25(a), (b). The discretionary dismissal subsection, subsection (a),
allows for a court “in furtherance of justice . . . either on its own initiative or upon
application of either party, [to] order an information or indictment dismissed.” Id. R.
25(a). Subsection (a) is silent as to whether a discretionary dismissal is generally one
that can later be refiled. See id. The mandatory dismissal subsection, subsection (b),
requires a court to dismiss in six situations: unreasonable delay, unconstitutional delay,
insufficiency of allegations, substantial and prejudicial defect in the proceedings, lack of
jurisdiction, and bar by reason of a statute of limitations. See id. R. 25(b). Subsection (c)
requires that “[t]he reasons for any such dismissal shall be set forth in an order and
entered in the minutes.” Id. R. 25(c). Subsection (d) then discusses when a dismissal is
to be made with prejudice or without prejudice. See id. R. 25(d). Subsection (d)
comprehensively addresses the six reasons listed in subsection (b), explaining for each
reason whether a case dismissed under that circumstance may or may not later be
refiled. See id.¶10 The court in this case did not specifically state in its order why it dismissed the
case, but it appears that the dismissal was a discretionary one under subsection (a), as it
came about as a result of the State’s motion and it does not fit within any of the
mandatory dismissal categories listed in subsection (b). See id. R. 25(a), (b).
20090863‐CA 5
Significantly, Rule 25 expressly bars refiling in only two instances, both of which
involve situations where the dismissal is mandatory: where the dismissal results from
an unconstitutional delay in bringing the defendant to trial and where the dismissal
results from a statute of limitations violation. See id. R. 25(d). Neither of these
circumstances occurred here, and thus, Defendant’s case was not dismissed for any
reason with respect to which Rule 25 expressly bars refiling.
¶11 While Defendant essentially argues that cases are presumptively dismissed
under Rule 25 with prejudice and that subsection (d) carves out the only exceptions
under which dismissals will be without prejudice,2 subsection (d) does not contain a
comprehensive list of exceptions. See id. Its purpose is to specify the exact outcome for
each of the six possible reasons for a mandatory dismissal, while it is silent as to any
opportunity for the refiling of charges after a discretionary dismissal. See id. Because
subsection (d) does not provide an exhaustive list, there is no reason to assume that
there is a general presumption of “with prejudice” upon the dismissal of criminal
charges. Each part of subsection (d) addresses one variant of mandatory dismissal, and
there is no basis for concluding it has any bearing on discretionary dismissals. See id.Stated another way, because subsection (d) addresses each of the possible avenues for
mandatory dismissal listed in subsection (b), we conclude that the only appropriate
interpretation is that subsection (d) simply does not apply to the discretionary
dismissals dealt with in subsection (a).
¶12 Additionally, it would lead to a most curious result if we were to conclude that
all dismissals, be they discretionary or mandatory, are presumptively with prejudice
unless otherwise stated in subsection (d). This construction would necessarily mean
that while the court is sometimes required to dismiss a case even though the dismissal
is without prejudice, all discretionary dismissals are with prejudice, even though a
discretionary dismissal, by definition, is entirely optional. For example, the rule
requires a court to dismiss, and to do so without prejudice, any time a prosecutor causes
unreasonable delay not amounting to a constitutional violation. On the other hand, if
2
Specifically, Defendant argues in his brief that Rule 25 “only allows re‐filing for
certain specified reasons” and that “[i]f the State had wanted to preserve the possibility
of re‐filing charges in the future it was required to set forth the basis of dismissal as
being pursuant to one of the enumerated reasons in Rule 25 which allows re‐filing of
charges.”
20090863‐CA 6
the court chose to dismiss under its discretionary authority under some other
circumstance, it would have no choice but to dismiss with prejudice.
¶13 Defendant’s position is also inconsistent with Utah jurisprudence. In State v.
Morgan, 2001 UT 87, 34 P.3d 767, the Utah Supreme Court discussed whether there is a
presumption barring refiling in certain circumstances, holding that it depended largely
on the potential for abusive practices by the prosecution. See id. ¶ 16. If it were the case
that Rule 25 absolutely mandated that discretionary dismissals be with prejudice,
precluding refiling simply because they are not listed in subsection (d)’s list of reasons
for which refiling is permitted, the Supreme Court’s discussion of this topic in Morgan
would have been entirely wide of the mark.
¶14 The rule of State v. Brickey, 714 P.2d 644 (Utah 1986), discussed more fully below,
is also instructive. Brickey requires that the prosecutor show the availability of newly
discovered evidence in order to refile a case that was previously dismissed by a
magistrate for insufficient evidence to warrant bindover. If Defendant’s position were
correct, this protocol would be wholly unnecessary because the magistrate’s
discretionary decision to dismiss would necessarily bar refiling regardless of whether
new evidence surfaced, given that insufficient evidence is not one of the six stated
grounds for mandatory dismissal under subsection (b), nor one of the grounds where
refiling is permitted by subsection (d). In sum, Utah courts have not assumed that
refiling is absolutely barred for discretionary dismissals, and we doubt that the
Legislature would have intended this result.
¶15 Defendant also argues that subsection (c) requires the court to state the reasons
for dismissal. See Utah R. Crim. P. 25(c). Even if the court violated Rule 25 by not
explicitly listing its reason for dismissing the case, we cannot see that Defendant
suffered any harm as a result. Rule 25 only requires that a case be dismissed with
prejudice in two circumstances, and there is no suggestion that the court might have
dismissed this case on either of these rationales, i.e., that there was an unconstitutional
delay in bringing Defendant to trial or that there was a violation of a statute of
limitations. See id. R. 25(d). Any other possible reason for which the court could have
dismissed the case is one for which the court would either have been required to
dismiss without prejudice or would have had the option to do so. The State’s motion
requested a dismissal without prejudice, and the court granted the motion. Under all
the circumstances, the dismissal was not one that was required to be with prejudice and
20090863‐CA 7
was not one intended by the court to be with prejudice. Thus, a failure to state the
reason for dismissal was necessarily harmless in this case.
II. Brickey Does Not Apply to This Case, and Defendant’s Due Process Rights Were Not
Violated When the Charges Were Refiled.
¶16 Next, Defendant argues that the trial court violated his due process rights when
it allowed the charges to be refiled. Defendant relies on State v. Brickey, 714 P.2d 644(Utah 1986). Brickey holds that where “charges [are] dismissed for insufficient
evidence,” they may only be refiled where “the prosecutor can show that new or
previously unavailable evidence has surfaced or that other good cause justifies refiling.”
Id. at 647. Defendant contends that Brickey applies, and prevents the State from refiling
the charges against him, because the State “did not believe that they had a good faith
basis to proceed with the case” when it requested dismissal of the charges. See id. But
the Utah Supreme Court has held that Brickey bars refiling only “after a magistrate has
dismissed a charge for insufficient evidence,” and thus “Brickey does not . . . indicate
any intent to forbid refiling generally or preclude refiling where a defendant’s due
process rights are not implicated.” State v. Morgan, 2001 UT 87, ¶¶ 11, 15, 34 P.3d 767.
And we recently held that Brickey is limited “to instances where the criminal charges
have been previously dismissed after a preliminary hearing at which the State
presented evidence that the magistrate deemed insufficient to bind the defendant over
for trial.” State v. Pacheco‐Ortega, 2011 UT App 186, ¶ 14, 257 P.3d 498, cert. denied, 268
P.3d 192 (Utah 2011).
¶17 Especially in light of our holding in Pacheco‐Ortega, this is clearly not a Brickey
case. See id. The magistrate found that there was sufficient evidence against Defendant
to bind him over for trial, and the State moved to dismiss the charges after the initial
bindover. Thus, not only was the case not dismissed based on insufficient evidence at
the preliminary hearing but, on the contrary, the magistrate determined that there was
sufficient evidence to warrant bindover. The court later dismissed the charges at the
request of the State, but it did so despite the existence of sufficient evidence for bindover.
Because Brickey does not apply to the facts of this case, the State was not required to
show that new evidence had surfaced when it refiled the charges against Defendant.
See 714 P.2d at 647.
¶18 Defendant claims that four months after it filed its motion, the State
communicated with OPC to explain that it had moved to dismiss the charges because it
20090863‐CA 8
did not believe it had a good faith basis to proceed.3 Defendant argues that this is
sufficient to show that the case’s dismissal was based on insufficient evidence. We
cannot agree. The State’s comment, even if accurately recounted in OPC’s letter, is not
relevant to determining whether Brickey applies, as it does nothing to establish whether
the magistrate found there to be insufficient evidence.
¶19 Defendant also argues that, apart from Brickey, basic due process precludes the
State from refiling the charges against him. Again we disagree. In State v. Morgan, 2001
UT 87, 34 P.3d 767, the Court held that “due process is not concerned with ordinary
levels of inconvenience because the nature of the criminal justice system necessarily
inconveniences those individuals who have been accused of crimes.” Id. ¶ 22 (citation
and internal quotation marks omitted). We do, however, take seriously a defendant’s
due process rights and seek to prevent “atypical” inconvenience to a defendant in
situations where a previously dismissed case is later refiled. See, e.g., Pacheco‐Ortega,
2011 UT App 186, ¶ 22 (considering “whether the delay here was atypical enough to
implicate the codefendant’s due process rights”).
¶20 Defendant argues that the State engaged in forum shopping by seeking dismissal
of the case from Judge Laycock’s docket and then later refiling, with the case then being
assigned to Judge McVey.4 We have held that it is problematic when there is reason to
believe that a party has attempted to “‘shop’ to a different judge in the hope of
obtaining a better result” than previously obtained. Id. ¶ 19. For this reason, Utah
appellate courts have repeatedly noted the requirement that parties refile with the same
judge whenever possible. See, e.g., Brickey, 714 P.2d at 647 (“[W]hen a charge is refiled,
the prosecutor must, whenever possible, refile the charges before the same magistrate
3
The statement Defendant refers to is in a letter from OPC. The letter stated:
“The OPC . . . has investigated these allegations and at this point we do not believe that
there is sufficient evidence to establish the probable cause that [Defendant] has violated
the Rules of Professional Conduct.” OPC stated that it made this determination after it
spoke to the prosecutor in this case, and it noted in its letter that the State “did not
believe that they had a good faith basis to proceed with the case, and they dismissed the
charges against [Defendant].”
4
From all that appears in the record, the assignment of the refiled case to Judge
McVey was a matter of random distribution or other in‐house protocol of the Fourth
District Court; it was not something orchestrated by the State.
20090863‐CA 9
who does not consider the matter de novo, but looks at the facts to determine whether
the new evidence or changed circumstances are sufficient to require a re‐examination
and possible reversal of the earlier decision dismissing the charges.”). Accord State v.
Rogers, 2006 UT 85, ¶ 13, 151 P.3d 171; Pacheco‐Ortega, 2011 UT App 186, ¶ 11. The rule
requiring the State to file with the same magistrate when possible exists to “prevent[]
the prosecutor from forum‐shopping in search of a sympathetic magistrate.” State v.
Fisk, 966 P.2d 860, 864 (Utah Ct. App. 1998). The same logic applies in a case like this
where the defendant has already been bound over and the question is which judge will
try the case. But without some demonstration that a party has set about to forum shop
or at least an articulated reasonable basis for concluding that the party has a motive to
forum shop, we will not assume that forum shopping has occurred.
¶21 Here, the record does not indicate that the State engaged in forum shopping in
the manner Defendant suggests. Judge Laycock, acting as a magistrate, had ruled in the
State’s favor at the preliminary hearing after determining that there was sufficient
evidence to bind Defendant over for trial. Nothing in the record suggests she had
found the question to be a close one or that she had somehow made things difficult for
the State. Defendant contends that the State became aware that Judge Laycock had
intended to grant a motion by Defendant to quash bindover and further alleges that the
State dismissed the charges while planning to later refile for this very reason. However,
there is no evidence to support this argument, and there is nothing of record to suggest
that Judge Laycock had tipped her hand as to how she intended to rule on the motion.
Rather, all we have on the record is that Judge Laycock found sufficient evidence for
bindover and subsequently scheduled a trial date. Because the case never progressed
beyond that point while assigned to Judge Laycock, she simply had no further
involvement with it—certainly no involvement that suggests a motive for the State to
engage in forum shopping.
¶22 Defendant has made no other argument for why the State would want to switch
the case from Judge Laycock to another judge, but seems to assume as much based only
on the State’s lack of support for Defendant’s motion to have the case moved back to
Judge Laycock once it was refiled and assigned to Judge McVey. Without any evidence
or reason to believe the State was attempting to shop for a more advantageous forum,
we will not simply assume that the State had improper motives.5
5
Defense counsel requested that the case be transferred because Judge Laycock
was familiar with the case and had already considered some of the motions that were
(continued...)
20090863‐CA 10
III. The State Did Not Violate Defendant’s Right to a Speedy Trial.
¶23 Finally, Defendant argues that his right to a speedy trial was violated by
allowing the State to dismiss and later refile the charges against him. Defendant
calculates that by the time he filed his brief on appeal, he had been under suspicion for
nearly three years—sufficient, in his view, for a presumptively prejudicial and
unconstitutional delay.
¶24 In determining whether a defendant’s right to a speedy trial has been violated,
we balance the following factors: (1) we must establish the length of delay, which is a
“triggering mechanism” for determining whether a violation possibly occurred; (2) we
look to the specific reasons for each individual delay or delays in the case; (3) we note
whether the defendant asserted his speedy trial right; and (4) we identify resulting
prejudice to the defendant, if any. See Barker v. Wingo, 407 U.S. 514, 521, 530 (1972); State
v. Trafny, 799 P.2d 704, 706 (Utah 1990). Relevant to Defendant’s circumstance, we note
that “[t]he intervening time between the State’s good faith dismissal and subsequent
refiling of charges does not implicate a defendant’s right to a speedy trial.” State v.
Steele, 2010 UT App 185, ¶ 40, 236 P.3d 161. The reason for this is that the primary
purpose of the right to a speedy trial is not “to prevent prejudice to the defense caused
by passage of time” but rather “to minimize the possibility of lengthy incarceration
prior to trial.” United States v. MacDonald, 456 U.S. 1, 8 (1982).
¶25 We decline to give Defendant’s speedy trial argument plenary consideration
because Defendant has failed to discuss the length of and reason for each circumstance
of delay. See Steele, 2010 UT App 185, ¶¶ 46–47. Rather, Defendant merely asserts that
the twenty‐nine‐month period from the time he was initially charged until he filed his
brief is presumptively prejudicial; concedes that a large part of that total delay is due to
his filing this interlocutory appeal; and asserts categorically that all other delays are
5
(...continued)
pending at the time the case was dismissed. The reasons why the State did not endorse
the request are not in the record, but Judge McVey explained that his hesitation to
transfer the case was based on a concern about overburdening Judge Laycock when the
caseload had already been equitably divided. Judge McVey noted that it is court policy,
“one that we’ve crafted and [one] that seems to be working well,” to avoid transferring
cases unless the receiving judge already has another case pending for that defendant.
Judge McVey was confident that he could quickly get up to speed and was worried that
a transfer would “throw [the court’s distribution of cases] out of whack again.”
20090863‐CA 11
“strategic in nature and are intended to harass” Defendant. Defendant bases this latter
assertion solely on the fact that the State refiled the case without identifying new
evidence. Mere assertions about another party’s intentions are not sufficient to provide
us “with the parts of the record that are central to the determination of [the] appeal,”
Allen v. Friel, 2008 UT 56, ¶ 10, 194 P.3d 903, and to aid us in “examin[ing] the length of
each delay that occurred during the pertinent time period and the reason for the delay,”
Steele, 2010 UT App 185, ¶ 47.
¶26 We are admittedly concerned about the possibility, suggested at oral argument,
that the prosecutor sought to dismiss the case due to the State’s lack of preparation,
with the intention to later refile once the State was able to get its ducks in a row. Had
the prosecutor requested an eight‐month extension prior to trial for the stated reason of
having the opportunity to better prepare, we imagine the request would have been
denied outright. And we recognize the possibility that prosecutors could seize upon
dismissal without prejudice as a clever way to buy additional time to more fully
prepare for trial in a case where they could not secure that opportunity by forthright
means. But we do not see any evidence in the record before us that this happened here.
¶27 Further, and most importantly, Defendant did not contemporaneously oppose
the State’s motion to dismiss without prejudice. In his brief, Defendant argues that
because the order did not state whether or not the case was in fact being dismissed with
prejudice, it would be absurd to expect Defendant to object to this order because
Defendant believed the charges against him were being dismissed with prejudice. We
do not suggest that Defendant’s failure to object to the order is problematic. It was the
State’s motion, given that the motion explicitly asked the court to dismiss without
prejudice, that should have caused a concerned defendant to speak up if he perceived
that the dismissal motion was really just a way for an unprepared prosecutor to secure a
continuance that would not have been granted otherwise. Instead, when the State filed
its motion to dismiss, Defendant offered no resistance, presumably satisfied that the
charges were simply going away, at least for the time being. At that time, Defendant
had the opportunity to demand either that the case be dismissed with prejudice or that
he be allowed to proceed to trial. Defendant did not take this tack, and it appears that
in doing so he wished to have it both ways, allowing the charges to be dismissed
without a fuss, while holding onto the opportunity to later claim a violation of due
process in the event of refiling.
20090863‐CA 12
CONCLUSION
¶28 Rule 25 of the Utah Rules of Criminal Procedure did not require that the court
dismiss the charges against Defendant with prejudice. There is no presumption in the
rule that a case must be dismissed with prejudice unless it falls within the terms of one
of the narrowly described exceptions. The trial court dismissed the case through its
discretionary dismissal authority under Rule 25(a). Any error in not stating the reason
for doing so was harmless. Further, we conclude that Brickey does not apply to this case
because the charges were not previously dismissed as a result of a magistrate’s
determination that there was insufficient evidence to warrant bindover. Defendant’s
due process rights were not violated when the State refiled the charges against him.
Finally, we do not reach the merits of Defendant’s speedy trial claim because it is not
adequately briefed.
¶29 We affirm the rulings before us on appeal. The case is remanded for trial or such
other proceedings as may now be appropriate.
____________________________________
Gregory K. Orme, Judge
‐‐‐‐‐
¶30 WE CONCUR:
____________________________________
Carolyn B. McHugh,
Presiding Judge
____________________________________
Michele M. Christiansen, Judge
20090863‐CA 13