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State v. Koerber

December 30, 1996

STATE OF WASHINGTON, APPELLANT,
v.
QUINCY ALLEN KOERBER, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 95-1-03970-3. Date filed: 11/14/95.

The Publication Status of this Document has been Changed by the Court from Unpublished to Published February 21, 1997. As Modified February 21, 1997.

Authored by William W. Baker. Concurring: Faye C. Kennedy, Mary K. Becker

The opinion of the court was delivered by: Baker

BAKER, C.J. - The dispositive issue in this case is whether a trial Judge abuses discretion by dismissing a criminal prosecution without a showing of prejudice to the defendant or evidence of governmental misconduct. The State appeals the trial court's dismissal of the charge against Quincy Koerber for a Violation of the Uniform Controlled Substance Act (VUCSA). We hold that the trial court abused its discretion by resorting to the extraordinary remedy of dismissing a criminal charge without first considering intermediate and less drastic remedial steps. We reverse the trial court and remand for reinstatement of the VUCSA charge and scheduling of a new trial date.

Because this opinion will not be published, we proceed without an introductory summary of the facts, including facts within our Discussion, as needed.

I

The night before the trial was to begin, the State was informed that one of its witnesses was sick with the flu. The trial Judge determined that because the witness was critical to the State's case, was not presently available, and because the State was unable to advise the court when the witness would be available, the case against Koerber would be dismissed with prejudice for "want of prosecution."

The trial Judge specifically stated that he was not dismissing the case on his own motion in the interest of Justice (CrR 8.3(b)), but on the basis of want of the State to prosecute properly.

On appeal, the parties argue at length whether the discretion of a trial court to dismiss a criminal conviction is circumscribed by CrR 8.3(b), that is: does a trial court have inherent authority beyond the dictates of CrR 8.3(b) to dismiss a criminal case?

However interesting this issue may be, we are not required to decide it in order to resolve this appeal. We are satisfied that the trial court's decision to dismiss, whether within or outside the confines of the rule, must be reviewed based upon an abuse of discretion standard. Utilizing that standard, we conclude that the trial court's dismissal order was an abuse of discretion.

Criminal convictions should not be dismissed for minor acts of negligence by third parties that are beyond the State's direct control when there is no material prejudice to the defendant. *fn1 The State did not engage in any unfair "gamemanship," or intentional acts, to prevent the court from administering Justice. The State's conduct did not warrant dismissal of its case against Koerber, and was an untenable ground for dismissal.

The trial Judge ignored reasonable alternatives when he readily ordered the extraordinary remedy of dismissal. *fn2 Dismissal of a criminal case is a remedy of last resort, and a trial Judge abuses discretion by ignoring intermediate remedial steps. We hold that the trial Judge abused his discretion. *fn3

If analyzed as a CrR 8.3(b) dismissal (despite the trial court's disavowal of this basis for the dismissal), we would nevertheless conclude that reversal is required. In considering whether a criminal case may be dismissed under CrR 8.3(b), the trial court must determine: (1) whether there has been any governmental misconduct or arbitrary action, and (2) whether there has been prejudice to the rights of the accused. *fn4

The trial court's authority under CrR 8.3(b) to dismiss has been limited to "truly egregious cases of mismanagement or misconduct by the prosecutor." *fn5 Dismissal of a criminal proceeding is an extraordinary remedy. *fn6 Absent a finding of prejudice to the defendant, dismissal of a criminal case is not ...


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