Sunday, November 26, 2017

Timing is Everything

Does the clock keep ticking? 
State v. Villar, 2017 VT 109

By Andrew Delaney

This case is interesting (I’d drop a footnote here that says “If you’re a nerd,” but footnotes are a pain in these posts, so we’re going with a parenthetical). Can the prosecution dismiss a case while it’s on appeal? The trial court judge said, “Nope.” SCOV disagrees.

Mr. Villar was convicted of DUI in 2015. He was sentenced to six months to three years, all suspended but 15 days. Though the opinion doesn’t say so, I assume it must’ve been a DUI3 or more given the upper limit of the sentence.

Mr. Villar appealed. His sentence was not stayed pending appeal. The appeal process was like a slow ping-pong match. There were several requests for additional time that were granted. At one point, before briefing was complete, the parties tried to enter a stipulation and plea agreement. SCOV pinged the ball back to the trial court, but the trial court denied the agreement. The ball ponged back to SCOV. More time for briefing, then a ping back to the trial court for an agreed-upon dismissal. The trial court denied the motion to dismiss and a motion to reconsider.

The trial court reasoned that the Rule (Vermont Rule of Criminal Procedure 48(a) for you detail-oriented folks) doesn’t allow dismissal outside of the timeframe of the prosecution. In other words, once the case is on appeal, the “prosecution” is over.

Pong! Back to SCOV.

Here’s (to me) the fun part. “Defendant began his oral argument by stating, ‘The trial court in this case rejected the prosecution’s notice of dismissal when there was no rule, no statute, and no case law permitting it to do so, and the parties in this case agree that this is a threshold issue, and that the state should have been permitted to dismiss.’”

Then the State gets up and gives a reverse My Cousin Vinnie opening-statement response! In other words, the State gets up and says, “Everything that guy just said is true.” That ain’t somethin’ you see too often, folks. Mark my words.

So the legal issue as the SCOV frames it is whether, under the rules, the state’s attorney can dismiss a case not just through trial but up to and including appeal. This is a question of law and gets de novo review.

As usual, we begin with the plain language. Here, the rule says that the state can file a written dismissal and the prosecution shall terminate, but if it’s during trial, the defense has to consent. As I write this, I realize that paraphrasing the rule is probably not the way to handle this piece, so let’s just block-quote it:
The attorney for the state may file a written dismissal of an indictment or information and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.
SCOV reasons that nothing in there says the prosecution merry-go-round stops once trial is complete. Prosecution continues through direct appeal.

Because there’s not a whole lot of Vermont law on the point, SCOV looks to federal jurisprudence. The feds have a similar rule. The federal case law says that “prosecution” continues through appeals. SCOV cites to the 1984 Korematsu case (a follow-up from the creepy one) for the proposition. (Hat-tip to our anonymous reader for catching the mistaken reference).

SCOV runs through a handful of other federal cases, and also notes that where the federal rule requires the court’s permission for dismissal, Vermont’s only requires the defendant’s. This, SCOV reasons, is instructive—especially since the court’s discretion on the federal level to deny a prosecutor’s dismissal is restricted.

So, here, with the defendant’s consent, the case had to be dismissed. SCOV holds that “the trial court erred in denying the state’s attorney’s notice of dismissal.”

Mr. Villar’s conviction is vacated and the charge is dismissed.


  1. The Korematsu decision cited in Villar isn't the infamous 1944 Supreme Court case - it's the 1984 Federal District Court case where Fred Korematsu petitioned to vacate the original 1942 conviction because of governmental misconduct. In response to the petition, the feds filed a notice of dismissal under Rule 48(a), asking the court to just dismiss the underlying indictment.

    The district court said that prosecutorial authority to dismiss ends once the case is no longer on direct review (the holding that's relevant to Villar), but granted Fred Korematsu a writ of coram nobis, vacating the 1942 conviction.

    1. Thank you. You're correct. I'm embarrassed to have missed that date in the citation. I've corrected the post.