I agree that the signing of a dismissal should be a ministerial function. Does anyone have a case that says so - or at least strongly implies it?

Lisa L. Peterson
Nolan County Attorney

Actually I'm aware of some old case law that says the opposite, that the court is not bound by a prosecutor's dismissal. see e.g. Swisher v. State, 544 S.W.2d 379. But the issue there is treated pretty summarily and without much discussion.

In any case what if you simply did not present any evidence, submitted your dismissal on the record and presented no other evidence, or did not show? In any of those situations the defense will ask and the judge will have to grant a directed verdict where there is a plea of NG and no evidence presented.

I wonder if the idea of a dismissal docket will still seem a good idea if thats all that happens on any of those dockets?

Legally that sounds right to me. Whether that makes sense on a more practical basis may be another matter.

I don't think that it is ministerial. The statute doesn't say "the court shall sign the dismissal", it says "by permission of the court" and "consent of the presiding judge." That implies that the judge gets to decide if he'll give permission or not. I personally don't see a good reason for the judge to force it on where the prosecutor doesn't want to continue, but I think the statute gives them the right to.

I ran into this once in Galveston...I reduced the charge to a lesser included Class C of some kind...or refilled it as a Class C...pled it out in the JP Court and thus jeopardied myself out of proceeding in the court of record...it ticked the judge off but I didn't have any more problems with him thereafter...no complaints from the defense folks...just an idea.

I do not recommend the following action, but did see it done one time. An elected DA filed a motion to dismiss that the district judge refused to sign. The judge set the case for trial. The DA picked the jury, read the indictment, then told the jury he asked the judge to dismiss the case during opening and rested.

Lol. I've seen a defense lawyer do something like that when we wouldn't waive a jury.

While on the darkside, I once opposed a motion to dismiss on a DWI. I wanted the acquittal to lift the ALR suspension. The State agreed to a bench trial and rested after offering no evidence. It was a unique set of facts including the arresting officer later being charged with an offense that called into question his credibility.

John, I've seen defense attorneys do that in order to get an immediate expunction too.

My sincere thanks to all those who visited with me about this problem last week in Dallas as well as those who have posted with ideas. The result - 1 case where attorney appeared grudgingly dismissed after court grilled both of us. One case (checks) in which defendant made restitution prior to being arrested AND where job loss was imminent if not handled - I explained and the Court commented "so put made restitution down for the reason..." and dismissed. Two other check cases I amended the reason and they were signed. Two other cases have complied with pretrial type conditions which were tailored to the facts of the case - so when I was asked to explain the conditions with which the defendant(s) complied, I refused. That didn't go well...but my feet are still on the street. One case was dismissed by the court without my knowledge (I had signed the motion and expected it to be on the list) - seems defense counsel went in and requested it...

The two unlucky ones will be set. Unless one of the deep thinkers in the group suggests otherwise, I will reurge my dismissal motion at pretrial, then request an acquittal from the jury.

I hate politics....

Lisa L. Peterson
Nolan County Attorney