State of Connecticut v. Meiline Smith (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS INFORMATION

The defendant, Meiline Smith, pursuant to Connecticut Practice Book §§ 39–32 and 41–8(5), has filed a motion requesting the Court to enter a dismissal of the information in the above matter.   The defendant seeks the dismissal on the grounds of insufficiency of evidence or cause to justify the bringing or continuing of the information.   At oral argument, defendant's counsel also argued that there was insufficient evidence for a conviction, but did not cite any Practice Book section or statute supporting a motion for dismissal on this basis.

PROCEDURAL HISTORY

The information in the above matter was based on a warrant authorized by a judge upon a finding of probable cause.   On February 5, 2013, the state entered a nolle prosequi as to all counts of the information.   The defendant made no objection at the time to the entry of the nolle, although defendant's counsel indicated on the record an intention to file a motion for dismissal of the charges at a later date.   The defendant did later make such a motion for dismissal, dated June 17, 2013, which was argued before the Court on July 3, 2013.   The state has objected to the granting of the motion for dismissal.

LAW

Section 39–30 of the Connecticut Practice Book allows the defendant in a criminal matter to object to the entering of a nolle prosequi “at the time it is offered by the prosecuting attorney and may demand either a trial or a dismissal.”  Practice Book § 41–8(5) also permits a defendant to raise, by a motion to dismiss the information, the defense of the “insufficiency of evidence or cause to justify the bringing or continuing” of the information.

Practice Book § 39–31 provides that the entry of a nolle prosequi “terminates the prosecution.”   If the prosecution subsequently decides to pursue the charge again, a new information is required.   Once a nolle prosequi has been entered without objection from the defendant, the trial court lacks jurisdiction to entertain a motion to dismiss filed at a later date by the defendant.  State v. Richardson, 291 Conn. 426, 429 (2009).   Similarly, an objection to a nolle prosequi which is not timely made may not properly be considered by the court except in limited circumstances not present here.   State v. Daly, 111 Conn.App. 397, 403–04 (2008).

It should be noted that even in cases where the court does have jurisdiction over a pending information, Practice Book § 41–9 provides that “[n]o defendant ․ who has been arrested pursuant to a warrant may make a motion under subdivisions (5) or (9) of Section 41–8.”

DISCUSSION

The central issue concerning the present motion is whether there was any pending information for the court to dismiss at the time the motion for dismissal was made.   Under the Practice Book provisions and case law cited above, there was not.   The court has jurisdiction over pending informations, but in the present case the entry of a nolle prosequi without objection by the defendant on February 5, 2013, terminated the prosecution.   No such information remained pending thereafter.

This very issue was decided by the Connecticut Supreme Court in State v. Richardson, supra, when it held that “the trial court was without jurisdiction to consider the defendant's motion to dismiss inasmuch as the defense had not timely objected to the entering of the nolle.”  State v. Richardson, supra, 291 Conn. 429.

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss information is dismissed for lack of jurisdiction of the court to entertain it.

BY THE COURT

Albis, J.

Albis, Michael A., J.