State v. Warner, 22-AP-016

Case DateJuly 14, 2022
CourtUnited States State Supreme Court of Vermont

State of Vermont

Kyle Warner *

No. 22-AP-016

Supreme Court of Vermont

July 14, 2022

In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

APPEALED FROM: Superior Court, Rutland Unit, Criminal Division CASE NO. 21-CR-05867 Trial Judge: David R. Fenster


In the above-entitled cause, the Clerk will enter:

Defendant argues that the criminal division abused its discretion in denying defendant's motion to convert the State's dismissal of his criminal case into a dismissal with prejudice. We affirm.

The record reveals the following facts. In July 2021, defendant was arrested on one count of second-degree aggravated domestic assault under 13 V.S.A. § 1044(a)(2)(B). He was held without bail under 13 V.S.A. § 7553a.[*]

The case was set for trial for September 2021. Prior to trial, despite defendant's efforts, there had been no deposition of the complainant. On September 10, 2021, the State filed a motion to continue on the grounds that it needed more time to prepare for trial and because it had failed to provide notice of its intent to introduce evidence regarding the context of the relationship between defendant and complainant. Defendant opposed the motion and the court denied a continuance. The State orally raised the motion to continue again at the jury draw, and the court deferred ruling on the motion. The State subsequently withdrew the motion. The trial was set for September 22 and 23. On September 21, 2021, the day before trial was scheduled to begin and after a jury had been drawn, the State filed a notice of dismissal without prejudice. Defendant moved to convert the dismissal to "with prejudice" under Vermont Rule of Criminal


Procedure 48. Following a hearing, the trial court denied defendant's motion on the record, finding that the State had not abused its dismissal power. Defendant filed this appeal.

Under Vermont Rule of Criminal Procedure 48(a), the State may dismiss an information before trial. The court can also dismiss the information if "dismissal will serve the ends of justice and the effective administration of the court's business" and the dismissal is without prejudice unless the court directs otherwise. V.R.Cr.P. 48(b)(2). Where the State dismisses the information under Rule 48(a), the court retains authority to decide if the...

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