The two sweetest words that anyone charged with any criminal charge will ever hear from a prosecuting attorney are “Case Dismissed!” But what happens after the charges have been dismissed? Is it possible for the State refile the dismissed charges? How can you ever sleep easy again not knowing whether you have to face being charged with criminal charges all over?
If the charge is a misdemeanor charge, like a first time DUI, then the answer is easy. No the State cannot refile misdemeanor charges once they have chosen to dismiss them, so you can relax.
However, if the charge is a felony then the answer becomes a bit more complicated. Felony charges can be refiled upon a voluntary dismissal by a prosecuting attorney. To learn more about who can dismiss a felony charge, read here.
Did the prosecutor say that they were dismissing the charges with prejudice? If you heard the words “with prejudice” then no, the State cannot refile the charges. If you did not hear those words, then they may or may not be able to file. The following questions still need to be considered.
Was the dismissal pursuant to a plea agreement to another criminal charge or charges? If so, then the answer is no they cannot refile the charges, regardless of whether prejudice is mentioned at all.
Has the Statute of Limitations run on your case? Most cases have a time limit within which a charge can be filed, and if the State attempts to file the charges after the Statute of Limitations has run, they may have problems refiling, although there are a number of factors that may cause the Statute to be tolled, and felony cases rarely have statute of limitations issues, since most felonies have at least a 5 year statute of limitations. To learn more about the Statute of Limitations, read here.
The time where I see the issue of refiling of criminal charges come up most frequently is at the time of a preliminary hearing. According to the Idaho Criminal Rules a criminal defendant has a right to a preliminary hearing within 14 days if in custody, and 21 days if out of custody.
It is very common for the prosecuting attorney to fail to have their case ready for a preliminary hearing within that time limit. In fact, it is more common for the prosecuting attorney to request a continuance than have a case ready in 21 days. Defendants charged with felony charges will try to seize this opportunity to request that the case be dismissed for failure to hold the preliminary hearing within 21 days. So the Defendant requests that the matter be dismissed, and the judge complies with the request, since the rules clearly state that the preliminary hearing should be held within 21 days.
The Defendant believes that he (or she) has gained a victory, but in fact he has not and has probably caused his case more problems because now he has not only forced the State to dismiss the case but also to refile the case. And when the State refiles that means a new warrant will be issued, and the Defendant will be rearrested, and have to post an entirely new bond, and will get none of their other bail bond money back.
If you have had a case dismissed, and still not sure whether the prosecuting attorney can refile the dismissed criminal charges, you may want to contact a criminal defense attorney. Call our office, and we’ll be happy to help you with any questions you may have.
Craig Atkinson is the lead attorney at Atkinson Law Office,
Boise DUI and Criminal Attorneys. It is located at 1087 W River St #290, Boise, ID 83702. You can call him anytime at 208.571.0627.
Ask Craig to review your case.