United States v. Kelly
| Decision Date | 11 January 1972 |
| Docket Number | No. 5885.,5885. |
| Citation | 285 A.2d 694 |
| Parties | UNITED STATES, Appellant, v. Michael Harry KELLY, Appellee. |
| Court | D.C. Court of Appeals |
Roger M. Adelman, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., John A. Terry and John J. Mulrooney, Asst. U. S. Attys., were on the brief, for appellant.
Mary Lee Garfield, Washington, D. C., appointed by this court, for appellee.
Before HOOD, Chief Judge, and KELLY and PAIR, Associate Judges.
This case brings to light an ambiguity in the Criminal Rules of the Superior Court of the District of Columbia (hereinafter referred as the "Rules"), and we take this opportunity to clarify it. Appellee was arrested on a charge of petit larceny.1 The arrest was made without a warrant, on the basis of a verbal description by the complaining witness who was not under oath. The accused was brought before the court and charged by information, reading of which was waived. A plea of not guilty was entered, the accused waived his right to a jury, and a trial date was set. During the inquiry regarding conditions of release, the presiding judge questioned the existence of probable cause to further detain the appellee. Finding a lack of probable cause at the time of arrest and an absence of other inculpatory evidence, he dismissed the information until such time as the Government could obtain a warrant based on an affidavit of the complaining witness.
The ambiguity concerns the right of a defendant to a preliminary examination, or probable cause hearing, in a misdemeanor case.
Appellee argues that Rule 5 applies to misdemeanors by virtue of its specific reference in paragraph (b) to informations. Rule 5(b) provides that a defendant shall be informed "of his right to have a preliminary examination unless [he] is thereafter indicted or, in appropriate cases, if an information has been or is filed against [him]." Appellee contends that his warrantless arrest on the basis of an unsworn complaint was properly found not to be an "appropriate case" to dispense with his right to a preliminary examination.
In our opinion, however, Rule 5 does not confer, on a person charged with a misdemeanor, a right to a preliminary examination, and the "appropriate cases" referred to in paragraph (b) are felony cases prosecuted by information after waiver of indictment pursuant to Rule 7(b). See M.A.P. v. Ryan, D.C.App., 285 A.2d 310 at 314 (decided Dec. 29, 1971). Specific amendments to Rule 5 designed to make it applicable to misdemeanor cases involving warrantless arrests were considered and rejected by the Criminal Rules Committee.2 A fair representation of the opinion of the committee, as a whole, is that it is more consistent with the interests of justice to move cases rapidly to trial than to further congest court calendars by providing preliminary examinations in such ca...
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Sparks v. United States, 9510.
...a contrary result. Moreover, we note that this holding comports with accepted practice in this jurisdiction. See United States v. Kelly, D.C. App., 285 A.2d 694, 696 (1972); Banks v. United States, D.C.App., 262 A.2d 110, 111 Finally, we refuse to consider the government's contention, raise......
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United States v. Smith, 8007.
...the information may not lie dismissed even if the court finds that probable cause to hold the defendant is lacking. United States v. Kelly, D.C.App., 285 A.2d 694 (1972). In the instant case, the court nevertheless went behind the information to assess its evidentiary foundation, and did so......
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Freeman v. Smith, 6977.
...the requested preliminary hearing resulted from a literal reading of but part of a recent decision of this court in United States v. Kelly, D.C.App., 285 A.2d 694 (1972). In Kelly the defendant was charged by information with petit larceny, a misdemeanor. During hail proceedings, the trial ......