A dismissal may not be ordered during the trial without the defendant's consent. The statement shall be filed with the record of the case and be open to public inspection. Such a motion shall be supported by a written statement concisely stating the reasons for the motion. No criminal case pending in any court shall be dismissed by any prosecuting attorney except upon motion and with the court's approval. Dismissal of a criminal case is governed by N.D.R.Crim.P. The State contends it was an abuse of discretion for the court to dismiss the case with prejudice as a sanction for the state being unable to proceed on the rescheduled court date. The district court granted the defendant's request and dismissed the case with prejudice. On May 29, 2003, the State refused to proceed at trial due to the premature release of its witnesses. This Court did not take any action on the State's petition for supervision. Upon the district court's denial of the motion to dismiss without prejudice, the State requested a supervisory writ to this Court on May 29, 2003, for a ruling on the issue. On May 28, 2003, the district court denied the motion to dismiss and the district court informed the State it would only dismiss the charges with prejudice. On May 28, 2003, after the district court's denial of the original motion to reconsider, the State filed a motion to dismiss the charges without prejudice so the State could drop the charges and re-charge the defendant at a later date. The district court denied the motion to reconsider on May 28, 2003, and notified the State it would conduct the trial on May 29, 2003. In addition to the difficulty in re-issuing subpoenas to the witnesses, the State informed the district court there were no State's Attorneys available on May 29, 2003, to present the case due to other hearings and court obligations. The State notified the district court it was unable to re-issue subpoenas to the witnesses for May 29, 2003, because the sheriff could not deliver the subpoenas in such a short time. Upon notification that the trial would have to be moved, the State moved the district court to reconsider its scheduling. Some of the witnesses were members of Tweeten's family and uncooperative. Subpoenas issued to the State's witnesses specified the date and time set for trial as May 28, 2003. The State informed the district court it could not comply with the May 29, 2003, trial date. The district court moved the trial to May 29, 2003, and notified the parties. On May 27, 2003, the district court contacted the State's Attorney's office and notified it that scheduling conflicts necessitated the trial be moved to May 29, 2003. The trial was originally set for May 28, 2003. On December 10, 2002, Darin Tweeten was served with criminal information alleging he committed felony child abuse and neglect of his minor child. We reverse the district court ruling and remand for further proceedings. The State appeals from an Order of Dismissal of Information with Prejudice. Box 1552, Bismarck, ND 58502-1552, for defendant and appellee. Goter, Goter Law Office, 723 Memorial Hwy., P.O. Thayer Ave., Bismarck, ND 58501-4413, for plaintiff and appellant. Opinion of the Court by Kapsner, Justice.īrandi Sasse Russell, Assistant State's Attorney, Courthouse, 514 E. State of North Dakota, Plaintiff and AppellantĪppeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Benny A.
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