Please help - I have a case where the original indictment was dismissed "with prejudice" (clearly a mistake), and the order merely states that the motion is "granted" and the case is "dismissed" with no notation or indication that the dismissal is with or without prejudice. Case is set for trial on the new indictment ASAP -- is the new indictment OK or is it barred because of the order dismissing based on the motionto dismiss with prejudice. Any help would be appreciated -- I really do not want to try this case twice!

[This message was edited by Larry L on 03-28-05 at .]

"The dismissal of a cause does not prevent the grand jury from returning a subsequent indictment charging the same transaction. This is especially so when the dismissal does not indicate that the cause was dismissed "with prejudice." Hughes, 16 S.W.3d at 431.

Furthermore, the portion of a judgment dismissing a case "with prejudice" may be void and thus subject to collateral attack by the State at any time. Seidel, 39 S.W.3d at 224; Roberts, 932 S.W.2d at 702.

Dismissal with prejudice is a drastic remedy "rarely seen in criminal law, even for constitutional violations." Terrazas, 970 S.W.2d at 159.

Thus, my vote is for forging ahead without fear.

Martin - Thanks for the reply. While dismissal with prejudice is certainly a drastic remedy, I wasn't sure if, since it was the (new) assistant DA who requested the dismissal that I could rely on the "drastic" argument. I could only find a couple of civil cases that said even when a dimissal "with prejudice" is MISTAKENLY sought, it is still a bar to refiling. Again -- thanks for the cites.

Hmm. Guess I did not understand that the State moved to dismiss the first indictment with prejudice. I still do not think the defendant could take advantage of this error unless there was some reason for that particular request in the motion. But maybe the cited cases can be distinguished on that basis.