Quigley v. City Court of City of Tucson, 2
Decision Date | 31 March 1982 |
Docket Number | CA-CIV,No. 2,2 |
Citation | 643 P.2d 738,132 Ariz. 35 |
Parties | Christopher J. QUIGLEY, Petitioner/Appellee, v. CITY COURT OF The CITY OF TUCSON; the Honorable Ronald Sommer, Acting Magistrate, Respondent, and The STATE of Arizona, ex rel., Frederick S. DEAN, City Attorney for the City of Tucson, Real Party in Interest/Appellant. 4206. |
Court | Arizona Court of Appeals |
The issue in this appeal from a special action is whether the superior court exercised the proper standard of review of the city magistrate's dismissal of a prosecution without prejudice.
Petitioner was charged in the city court with petty theft. A pretrial conference was held on July 23, 1981, and the state disclosed its witnesses. The state, however, did not include the name of a Mr. Arnold, an accomplice who had already been convicted. Recognizing this error, the prosecutor had Mr. Arnold added to the witness list and a subpoena was issued for his attendance, but no attempt was made to add his name to a supplemental disclosure.
Through the attempt to serve the subpoena, it was discovered that Mr. Arnold would not be back from a California vacation until August 15. Since Mr. Arnold was the "star witness" for the prosecution, the state cancelled the subpoenas for the other witnesses without the prior knowledge of the court or the petitioner and on the trial date filed a motion for continuance.
The city magistrate stated, inter alia, in response to the motion:
He then, sua sponte, dismissed the prosecution without prejudice. However, he also ordered the prosecution be dismissed with prejudice if the charges were not refiled within 30 days. Petitioner then moved the city magistrate to simply dismiss with prejudice but the magistrate refused to do so.
Petitioner then filed this special action in the superior court contending that the prosecution should have been dismissed with prejudice. The superior court agreed and remanded the case to the city magistrate with directions to enter an order of dismissal with prejudice. The state appealed from the order of the superior court. We vacate the order.
The dismissal of a prosecution is specifically and clearly addressed by Rule 16.5(d), Arizona Rules of Criminal Procedure, 17 A.R.S.:
"Dismissal of a prosecution shall be without prejudice to commencement of another prosecution, unless the court order finds that the interests of justice require that the dismissal be with prejudice." (Emphasis added)
We have four observations concerning the rule. First, dismissal without prejudice is favored by the rule. 1 Second, there can be no dismissal with prejudice unless the interests of justice require it. Third, in order for there to be a dismissal with prejudice the court order must...
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