Hey everyone need a fairly quick answer to a problem. Trial is on Monday. Here are the facts. Two separate indictments were done one for DWI 3rd or more and one for Prohibited Substance in Correctional Facility. DWI was indicted first and we did not mess with Prohibited Substance in Correctional Facility at first because of small amount of marijuana found in sock during book in. So here is issue. DWI goes to trial early this year get a hung jury (habitual 25 to life). We indict on the Prohibited substance shortly thereafter. On first court hearing back in August of this year we announced in open court that we were going to trial on both causes. Clerks notices reflect same with both causes numbers being set on same date for trial. Our office neglects to file joinder notice under 3.02(b). Defense never files motion to sever but today saying they just want to proceed under DWI only. Both offenses occurred in same occurrence. Arrested for DWI taken to jail marijuana found. Before you say it I know there is an absolute right to sever as long as motion is file before trial but since she has notice of both and both set for trial that day, I get to elect which one goes correct? Case law would be greatly appreciated. Thanks, Chad

[This message was edited by Chad Morgan on 10-13-06 at .]

Yes, you get to pick which case; that's a State's right (*gasp!*) not a defendant's. I may be wrong about this, but I also think that if you try them separately, it is in the discretion of the court whether to stack the sentences under CCP 42.08) because PC 3.03 doesn't apply (you're not trying 2 cases from the same criminal episode in the same criminal action). If that's important to you (it may not be on these facts) then go ahead and have a motion for cumulative sentences prepared.

The judge has the ultimate authority to choose which case goes to trial. Most of the time, the judge delegates this decision to the prosecutor.

Well, since the prosecutor can dismiss the charge he doesn't want to try (and refile it later), the prosecutor does have the ultimate choice over the case to try. The discretion to charge is the discretion to try.

Doesn't the dismissal have to be with the permission of the Judge ? (32.02 CCP)
Granted if the Judge denies your dismissal, you can rest without putting on evidence but then doesn't jeopardy attach ?

Well, we already had that debate. Read here.

If there are two cases on the trial docket and the state is ready on both of them, I think it would be irresponsible to dismiss the case the judge chose to go to trial in order to try the other one. We do not need that kind of gamesmanship in the criminal justice system. Additionally, the prosecutor does not have full authority; the judge has to grant the motion to dismiss.

I agree with Ken.

I also just think its unwise to go into a court and base your trial strategy on the belief that you have the absolute right to dismiss. Maybe its ministerial, maybe its not, maybe you could be successful with a mandamus, maybe not. I do know that I don't want to be the proosecutor to make bad case law for the rest of us or even worse to tell someone else that's the law and have them want to kill me after their Judge cuts the limb out from under them citing 32.02.

I've worked in a lot of jurisdictions whose Judges were not as nice and accomodating as they are here in Georgetown (naked or not !)

Perhaps the better answer is not to put yourself in a position where you have to challenge your judge. Surely a prosecutor can make a decision on what case to try earlier than the date of trial.

But, if it happens that the judge is forcing a prosecutor to try the weaker case, I don't see anything wrong with challenging that judge's ability to force such a trial by seeking to dismiss the weaker case.

I dont' see that as gamesmanship. That is seeking justice.

Break the tension: what ended up happening in your cases?

My point is that a prosecutor should not be setting a case for trial unless he/she expects to be ready and willing to try the case.

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My point is that a prosecutor should not be setting a case for trial unless he/she expects to be ready and willing to try the case.

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I don't know how it works for you; I know a lot of prosecutors have control over their own dockets and settings. In our misdemeanor courts, however, there's not much choice. The court coordinators do all the settings and usually based on what the defense attorney tells the coordinator without input from the State. Yes, sometimes they set cases for trial when we are not ready or have witness issues. The good side is that most of our judges (not all, but most) have been pretty good about granting trial continuances, and our relationship with the defense bar tends to be good enough that we try not to oppose each others' continuances unless there's a very good reason (e.g., out of state witness; 5th continuance for defendant not paying, etc.). So basically, while I suspect they're in the minority, not all counties have total control over court settings; therefore it's not always possible to wait to set the case for trial until the State is ready.

I understand and if a state's motion for continuance is denied, a prosecutor would be well advised to dismiss and re-file instead of getting an instructed verdict or a verdict of not guilty. My point had to do with the state being ready for trial on two cases and dismissing one to try the other.

The judge of course granted the severence and then looked to both of us and asked which case was going to be tried. I of course stated that I wanted to try the prohibited substance in a correctional facility and the defense attorney stated that she was not ready even though she had written and verbal notice and stated on the record that if forced to go on the prohibited substance that there would be multiple grounds for appeal. The judge inquired as to which grounds and she stated well ineffective assitance of counsel most certainly. I looked at the judge and said good luck with that but the real facts are is she has had her ten days and been given notice the state would like to proceed on the prohibited substance in a correcitonal facility and the judge granted our wish. THE JURY IS OUT RIGHT NOW.

Oh, come on...you left us hanging at the critical point! This isn't sweeps!

Seriously, congratulations on your victory with the issue that originated this thread; I hope the outcome with the jury is also favorable.

Of course, if you want the defense to announce ready, the State must announce not ready first. Then, after the defense says, "Ready," thinking a continuance will be granted, the State can change its mind and say, "Oh, I meant, Ready."

I cannot believe it! The defendant was granted a lesser included possession of marijuana under 2 ounces the jury deliberated for 3 1/2 hours and came back on the lesser included. What really stinks is that after talking with the jury they just felt that for such a small amount of marijuana that since they would be involved with punishment later they could not give him 25 to life so instead they just felt they would go with the lesser. It also did not help that when the jailer testified about finding the grass in his pocket during dress out that every question I asked him such as Could you please describe the duties of a floor jailer? he paused for at least 30-45 seconds and had a worried look on his face. I gave him a list of questions before trial that morning to look over. I interjected and broke up the process for him and he still stumbled and it is was not his first time testifying. But the jury stated they felt he was hiding something since it took him so long to answer. The kicker was when I asked him if our jail was a secure correctional facility and he paused again and said "you know I don't know if it is or not, I know that it is a detention facility." You can imagine my frustration. Anyway it is over on to the next case. Thanks for everyone's help and comments on this case they were very helpful. Thank You, Chad

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they just felt that for such a small amount of marijuana that since they would be involved with punishment later they could not give him 25 to life

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So in other words they admitted they completely disregarded the judge's instructions. We all knew this happened, but it's not very comforting to have this affirmed.

Exactly!!!!

Chad,

Maybe you need to talk to your sheriff about hiring jailers with an IQ over 50. Might help in the future.