APPELLANT v. ROY CISSELL APPELLEE (2011)

NOT TO BE PUBLISHED

OPINIONREVERSING AND REMANDING

The Commonwealth appeals from the dismissal of an indictment with prejudice by the Shelby Circuit Court.   On appeal, the Commonwealth argues that the Shelby Circuit Court lacked the authority to dismiss the indictment with prejudice.   Upon review, we agree.

On April 9, 2008, a Shelby County Grand Jury returned an indictment against the appellee, Roy Cissell, on four counts of Incest against his minor son, M.R. Cissell was arraigned on April 21, 2008.   Discovery proceeded in the case and, on September 15, 2008, the trial court set a trial date of December 15, 2008.

On November 12, 2008, Cissell tendered an agreed order requiring the Franklin County Public Schools to release to him and to the Commonwealth, M.R.'s school records.   After defense encountered difficulty obtaining the requested school records from the relevant districts, the court entered two subsequent agreed orders at Cissell's request for disclosure of the records.   The Commonwealth agreed to continue the trial date on two occasions, until such time as the school records were made available.   On December 22, 2009, a new trial date was scheduled for March 25–26, 2010.

However, on March 19, 2010, the Commonwealth filed a motion to dismiss the indictment against Cissell without prejudice.   In response to the Commonwealth's motion, Cissell joined the Commonwealth's motion to dismiss, requesting however that the indictment be dismissed with prejudice, noting that the case had been pending since Cissell was indicted in April 2008.

The court heard the motions on March 25, 2010, the date set aside for trial.   At the hearing, the Commonwealth represented that a witness, another alleged victim who had previously been uncooperative, had come forward and that her testimony might be admissible as evidence under Kentucky Rule of Evidence (“KRE”) 404(b).  The Commonwealth stated it wished to speak to the witness before trial, but as she lived in another state, the Commonwealth instead sought a dismissal without prejudice so that it may have an opportunity to meet with her and conduct an interview.   Cissell argued at the hearing that the indictment had been pending since April 2008 and that he “had a problem with” the Commonwealth reindicting the case instead of asking for a continuance.

Noting that the case had been set for trial for three months, the trial court opined that testimony from the newly discovered victim would likely not be admissible under KRE 404(b), that her testimony seemed to be sought for the sole purpose of bolstering the first victim's testimony, and that her case would likely be brought in a different court entirely.   The court then dismissed the indictment against Cissell with prejudice.   The Commonwealth now appeals from the order of dismissal.^Double

Generally speaking, a trial court does not have the authority to dismiss a criminal indictment with prejudice without the consent of the Commonwealth.   Gibson v. Commonwealth, 291 S.W.3d 686 (Ky.2009).   Indeed, the Separation of Powers doctrine precludes the judiciary from usurping this executive branch authority.  Id. See also, Commonwealth v. Baker, 11 S.W.3d 585, 590 (Ky.App.2000).   This is in contrast to a trial court's authority in civil proceedings to determine whether the dismissal of a case should be granted “with prejudice” or “without prejudice.”   Kentucky Rule of Civil Procedure (“CR”) 41.01.

Nonetheless, our courts have acknowledged that there are limited, exceptional circumstances in which a trial court may dismiss an action with prejudice over the objection of the Commonwealth.   Gibson, 291 S.W.3d at 690;  Hoskins v. Maricle, 150 S.W.3d 1, 13 (Ky.2004).   Such rare exceptions include a violation of the right to a speedy trial;  certain instances of outrageous government conduct or prosecutorial misconduct;  and cases in which mistrials occur after jeopardy has attached.^Double

In the present case, jeopardy had not yet attached and there existed no speedy trial motion ^Double or outrageous conduct by the government that would undermine the fundamental fairness of the proceeding.   Accordingly, the Shelby Circuit Court was without authority to dismiss the indictment with prejudice absent consent from the Commonwealth.   Thus, we reverse and remand to the trial court with instructions for the court to enter an order dismissing “without prejudice.”

ALL CONCUR.

WINE, JUDGE: