 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Commonwealth v. Sowell3/17/2005
TO BE PUBLISHED
AFFIRMING
KRS 500.050(2) provides that a misdemeanor prosecution must be commenced within one year after the offense is committed. A misdemeanor prosecution for assault was timely commenced against Appellee, Robert Sowell, but was dismissed without prejudice due to the inability of the Commonwealth to produce the complaining witness at trial. More than ten days after entry of the order of dismissal, the case was redocketed via motion, and again set for trial. The question we must address is whether a case dismissed without prejudice may be redocketed and proceed as if there had been no dismissal or whether new process is required. We hold that a dismissal without prejudice is a final and appealable order, and that after dismissal without prejudice and loss of trial court jurisdiction, a defendant must be recharged. Therefore, we affirm the Court of Appeals.
On August 2, 1999, Sowell allegedly assaulted Bonita Clarke and her son, and allegedly damaged Ms. Clarke's property. An arrest warrant was issued for Sowell's arrest on September 15, 1999, but Sowell was not arrested until May 17, 2000. Sowell was charged with two counts of fourth-degree assault and a single count of criminal mischief, all misdemeanors. The case was set for trial on May 30, 2000, but continued until June 9, 2000. The prosecuting witness, Ms. Clarke, however, did not respond to the subpoena for her attendance or appear for either trial date. On June 9, 2000, the district court dismissed the case without prejudice.
More than ten days after the date of dismissal without prejudice (July 12, 2000), but still within the KRS 500.050(2) one-year period of limitation, the Commonwealth moved to redocket the case. The district court granted the motion and set the trial date for August 7, 2000. Thereafter, Sowell filed a motion to dismiss stating that the prosecution was not timely under KRS 500.050(2), and the district court granted the motion. On appeal, the Jefferson Circuit Court reversed on grounds that the Commonwealth had complied with KRS 500.050(2) because Sowell received notice of the charges against him within the one-year period. The Court of Appeals granted discretionary review, reversed the circuit court, and held that finality of the dismissal without prejudice by expiration of the time allowed in CR 59.05 and RCr 12.04 barred redocketing the case. Upon the Commonwealth's Motion, this Court granted discretionary review.
At the outset we will examine the meaning and effect of the phrase "without prejudice" in a dismissal order. Black's Law Dictionary defines dismissed without prejudice as "(r]emoved from the court's docket in such a way that the plaintiff may refile the same suit on the same claim." CR 54.01 defines final order or judgment as "adjudicating all of the rights of all of the parties in an action or proceeding...." In several cases we have held that a dismissal without prejudice is a final and appealable order. Notably, in Wood v. Downing's Admr., we held that an order dismissing without prejudice "fixed absolutely and finally the rights of the parties in this suit in relation to the subject matter of the litigation, and put an end to the suit. It was a final appealable order." Notwithstanding the "without prejudice" language, an order of dismissal adjudicates all rights. Nothing remains to be done.
The Commonwealth argues that a dismissal without prejudice is not a final adjudication of the merits of the claim, and therefore the original process is sufficient to resurrect the dismissed case. The Commonwealth relies on Commonwealth v. Hicks for the proposition that a dismissal without prejudice does not act as a final judgment on the meri
Page 1 2 3 4 Kentucky Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|