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Commonwealth v. Sowell3/17/2005
to preserve the viability of a dismissed claim should see that the proper notation is affixed by the trial court or seek appellate relief. (Emphasis added.)
In my opinion, it is patently clear that a dismissal without prejudice is not a final order or judgment for purposes of the finality rule of CR 59.05, and no authority cited in the majority opinion compels a conclusion otherwise. A dismissal without prejudice, as we are dealing with in the case at bar, does not adjudicate all of the rights of the parties. Indeed, it does not adjudicate any rights.
Thus, we are finally confronted with the issue of whether, for purposes of KRS 500.050(2), the prosecution of the misdemeanor offenses at hand were commenced within one year after they were committed. As noted above, once the location of the prosecuting witness and her child were obtained, the Commonwealth moved to "redocket" the case and noticed the Appellee of its intention to prosecute the misdemeanor charges. I agree with the seasoned circuit judge below who concluded:
his case was "commenced" within the one (1) year time period set out in KRS 500.050(2). The fact that it was dismissed without prejudice and later "re-docketed" does not mean that the statute has run. The intention of the statute was fulfilled in that Mr. Sowell had notice of the charges against him within the one (1) year time period. In fact, he was aware that the Commonwealth was re-docketing the action within the one (1) year time frame for misdemeanors.
This Court can find no significant difference in bringing a new action versus moving the court to re-docket the case.
Legal precedent, public policy, or common sense do not persuade otherwise. I would reverse the Court of Appeals and affirm the Opinion and Order of the Jefferson Circuit Court.
Graves and Wintersheimer, JJ., join this dissenting opinion.
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