Saturday, March 21, 2015

Refiling as subterfuge violates speedy trial

Patrick H. Dunn won in State v. Anunda, No. 110,629 (Kan. App. Feb. 27, 2015)(unpublished), affirming Judcge Martin's order dismissing a Douglas County aggravated sexual battery prosecution. The state had dismissed a prior case a few days prior to jury trial and refilled on a similar, but lesser offense. Judge Martin had ruled that the dismissal was not for necessity, but a subterfuge to avoid the speedy trial limits. The COA upheld that finding:
To summarize our narrow ruling here, we hold: the State can violate the speedy trial rights of an accused when it arrests the accused for a particular charge and others, then does not actually include that particular charge in the information, then does not ask that the accused be bound over on that particular charge at the preliminary hearing, then, 10 days before trial asks that the particular charge be included as an alternate count, relying on the preliminary hearing record for probable cause, and, when that request is denied, then, as a subterfuge, dismisses the case 4 days before the trial and simultaneously refiles a case containing only that particular charge if the tacked together statutory speedy trial time in the cases exceeds that prescribed by the applicable section of K.S.A. 2013 Supp. 22-3402.
The COA also noted that the state had failed to brief any argument to reverse the district court's alternative holding that the case should also be dismissed under the Due Process Clause.

[Update: the state did not file a PR and the mandate issued on April 2, 2015.]

No comments: