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State v. Diprete5/1/1998
rt had before it the question of whether or not the pretrial dismissal of a criminal information because of the state's failure to provide discovery precluded the state from filing a second information upon the same alleged charges. This Court on October 16, 1986 entered an order as follows:
"This case came before the court for oral argument on October 9, 1986 pursuant to an order which directed the state and the defendant to appear before this court in order to argue the question whether the information presently pending on appeal should not have been dismissed as a result of the dismissal of a preceding information covering the same subject matter by reason of the repeated unexcused failure of the prosecution to make discovery in accordance with Rule 16 of the Superior Court Rules of Criminal Procedure.
After examining the pre-briefing statements and supplemental memoranda filed by the parties and hearing the arguments of counsel, the following order may enter:
1. The court is of the opinion that the trial Justice had ample authority to dismiss the original information with prejudice in light of the persistent failure of the prosecution to make discovery. However, the trial Justice did not specifically state whether he was dismissing the information with prejudice or otherwise. Subsequent to the filing of the second information, the defendant moved to dismiss on a number of grounds. Although the trial Justice denied the motion to dismiss, he did not specifically decide whether he had dismissed the first information with prejudice.
2. Consequently, this case shall be remanded to the trial Justice for the purpose of deciding specifically the question of whether he dismissed the first information with prejudice or otherwise.
Entered as an Order of this Court this 16th day of October, 1986." (Emphasis added.) State v. Rawlinson, No. 85-261-C.A. (R.I., order filed October 16, 1986).
Following the entry of that order, the trial Justice in that case responded to this Court's remand order and stated that his pretrial dismissal had been intended to be with prejudice. This Court, thereafter, based solely upon the propriety and validity of the trial Justice's earlier pretrial case dismissal, vacated Rawlinson's later jury trial conviction and his twenty-five year prison sentence.
Accordingly, the majority's position that this Court has never upheld the pretrial dismissal of a criminal case because of the state's failure to comply with a Rule 16 discovery order in the absence of a previous self-executing conditional order of dismissal is simply unfounded. This Court, at a time when each member of the majority was sitting, did so, less than two years after Quintal was decided. The majority in a footnote response to my Dissent attempts to rescue itself from the paradoxical dilemma in which it now finds itself after having been confronted by its previous order entered in Rawlinson on October 16, 1986. State v. Rawlinson, No. 85-261-C.A. (R.I., order filed October 16, 1986). In that order, the majority pronounced as the "opinion" of the members of this Court that a trial Justice had ample authority to dismiss, pretrial, a criminal proceeding "with prejudice" because of the prosecution's failure to provide discovery. In this case, on much stronger facts, including deliberate prosecutorial misconduct, the majority pronounces the opposite and seeks to justify the resulting contradiction by simply disclaiming and distancing itself from its earlier proclamation on the basis that what it then said to be the law was contained in an unpublished order. Never before, however, has this Court ever suggested that there is a difference in the validity and
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