State v. Atencio
| Decision Date | 01 April 2004 |
| Docket Number | Case No. 20030289-CA. |
| Citation | 89 P.3d 191,2004 UT App 93 |
| Parties | State of Utah, Plaintiff and Appellant, v. Stacy Eileen Atencio, Defendant and Appellee. |
| Court | Utah Court of Appeals |
Mark L. Shurtleff and Christine Soltis, Salt Lake City, for Appellant.
Nisa J. Sisneros and Heather Johnson, Salt Lake City, for Appellee.
Before Judges Billings, Greenwood, and Jackson.
¶1 The State appeals from the trial court's pretrial order dismissing a refiled information charging Defendant, Stacy Atencio, with endangerment of a child and various drug offenses. We reverse.
¶2 On February 20, 2002, the State filed an information charging Defendant with (1) two counts of unlawful possession of a controlled substance, in violation of Utah Code Annotated section 58-37-8(2)(a)(i) (2002); (2) unlawful possession of drug paraphernalia, in violation of Utah Code Annotated section 58-37a-5 (2002); and (3) endangerment of a child, in violation of Utah Code Annotated section 76-5-112.5 (Supp. 2002). A preliminary hearing was initially scheduled for May 2002, but was continued until July 2002. Because the State's toxicology analysis was not completed by the July preliminary hearing, the State moved for a continuance. The State's motion was granted and the preliminary hearing was rescheduled for August 13, 2002, before Judge Anthony B. Quinn.
¶3 Immediately prior to the preliminary hearing, the prosecutor discovered that her case file was missing. The following exchange then took place between the prosecutor and the trial court:
¶4 The prosecutor then called Detective James Tracy as a witness. Detective Tracy was duly sworn, and at the request of the trial court, stated his full name and spelled his last name. At this point, the following dialogue ensued:
¶5 The trial court then dismissed the case. Two days later, the State refiled the information and the case was assigned to a different judge. Prior to the preliminary hearing on the refiled charges, Defendant filed a motion to dismiss and the motion was argued before Judge Stephen L. Henriod. Defendant argued that the trial court should dismiss the case because under State v. Brickey, 714 P.2d 644 (Utah 1986), there was no new or previously unavailable evidence that supported the State's decision to refile the dismissed charges. See id. at 647. The State responded by arguing that Brickey did not apply to this case because the charges against Defendant were dismissed for failure to proceed and Brickey only applied to cases that were dismissed for insufficient evidence. See id. The trial court granted Defendant's motion noting that Brickey required "new or previously unavailable evidence in order to refile."
¶6 On March 31, 2002, the trial court issued an order formally dismissing the refiled charges. The State timely filed its notice of appeal.
¶7 The State contends that the requirement from State v. Brickey, 714 P.2d 644 (Utah 1986), that refiled charges must be supported by "new or previously unavailable evidence," id. at 647, does not apply when a case is dismissed for failure to proceed at a preliminary hearing. Interpretation of case law presents a question of law which is reviewed for correctness. See State v. Morgan, 2001 UT 87,¶1, 34 P.3d 767.
¶8 The State maintains that the trial court erred when it dismissed the case based on the State's failure to support the refiled charges with "new or previously unavailable evidence." Brickey, 714 P.2d at 647. According to the State, Brickey does not apply to this case because the original charges were dismissed for failure to proceed rather than for insufficient evidence. Defendant responds by first arguing that this court should decline to review the State's claim because the State failed to provide, as part of the record on appeal, the complete record from the first dismissed case. According to Defendant, the complete record from this case is necessary, in part, because of a factual dispute as to when the first two preliminary hearings were scheduled. Defendant further argues that even if this court considers the State's claim, the trial court's ruling should remain undisturbed because Defendant has already "had to return to court an inordinate number of times for the same charges, causing her unnecessary inconvenience and stress," and because "the prosecutor . . . indulged in `forum shopping,' which is a recognized violation of criminal defendants' state due process rights."
¶9 Before addressing whether the trial court erred when it dismissed the refiled charges, we first consider Defendant's threshold argument that this case should not be reviewed because the State failed to furnish the complete record from the original case. We find Defendant's argument unpersuasive for two reasons. First, it is not supported by any legal authority. While Defendant cited State v. Cramer, 2002 UT 9, 44 P.3d 690, and State v. Rawlings, 829 P.2d 150 (Utah Ct. App. 1992), both cases simply stand for the proposition that an appellate court will not review any evidence that is not part of the appellate record.1
¶10 Second, it is undisputed that the only portion of the record from the original case considered by the trial court was the August preliminary hearing transcript that was filed as an exhibit to the State's Memorandum in Opposition to Defendant's Motion to Dismiss. This transcript is part of the record on appeal. See Utah R. App. P. 11(a) (). Therefore, the record is sufficient for this court to consider the State's challenge to the trial court's ruling.
¶11 Having determined that the record on appeal is adequate, we turn to the State's argument that the trial court erred when it dismissed the refiled charges against Defendant because there was no "new or previously unavailable evidence" to support the refiled charges. Brickey, 714 P.2d at 647. In Brickey, the defendant was charged with forcible sexual assault. See id. at 645. After a preliminary hearing, during which only the victim testified, the trial court dismissed the case because the State had failed to establish a necessary element of the crime charged. See id. The prosecutor refiled the charge and a second preliminary hearing was held before a different judge. See id. This time, the victim's father, who was present at the first preliminary hearing, also testified. See id. After the preliminary hearing, the defendant was bound over for trial. See id. at 646.
¶12 On appeal, the Utah Supreme Court considered what limits the due process clause of the Utah Constitution placed on the State's ability to refile the charge against the defendant. See id. Relying primarily on Jones v. State, 481 P.2d 169 (Okla. Crim. App. 1971),2 the court reversed the trial court's decision and held "that due process considerations prohibit a prosecutor from refiling criminal charges earlier dismissed for insufficient evidence unless the prosecutor can show that new or previously unavailable evidence has surfaced or that other good cause justifies refiling." Brickey, 714 P.2d at 647 (emphasis added).
¶13 Despite the apparent rigidity of its holding, "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,¶15, 34 P.3d 767. When no "potential abusive practices" on the part of the prosecution are involved, "there is no presumptive bar to refiling." Id. at ¶16.
¶14 In Morgan, the defendant was charged with felony possession of methamphetamine with intent to distribute. See id. at ¶2. After the trial court determined that the arresting officer's testimony at the preliminary hearing was insufficient to establish intent to distribute, it reduced the charge to felony possession and bound the defendant over on the reduced offense. See id. at ¶4. However, the trial court subsequently granted the State's motion to dismiss the charge without prejudice thereby allowing the State to refile the original charge. See id. At the second preliminary hearing, testimony of a second police officer with significant narcotic investigation training and experience was admitted. See id. at ¶5. Based on this testimony, Defendant was bound over for trial as charged. See id. at ¶6. The Utah Supreme Court concluded that the State's failure to call the second police officer as a witness during the first preliminary hearing "was an `innocent miscalculation,' which [constituted] `other good cause,'[Brickey, 714 P.2d at 647,] sufficient to allow the prosecutor to refile the case." Morgan, 2001 UT 87 at ¶21.
¶15 In this case, there is no evidence that when the prosecutor misplaced her file, she was engaged in a "potential abusive...
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...evidence or proves the existence of other good cause to justify a subsequent preliminary examination.”); see generally State v. Atencio, 2004 UT App 93, 89 P.3d 191 (suggesting a difference between cases that are unable to proceed and cases where evidence is insufficient to proceed). Our co......
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State v. White, Docket No. 28,588 (N.M. App. 5/10/2010)
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