Situation that has not come up before:

We have an individual that was committed due to incompetency on 2 cases pending. Was committed for 12 months. His 12 months will be up in a few weeks. We filed motions to dismiss the indictments on grounds of incompetency. The hospital called and faxed our office a letter declaring he is now competent that was dated a month ago (they sent a copy to the court but never to us).

So, my question is this: Does a judge have the power to rescind a State's dismissal on grounds that the defendant was not actually incompetent at the time the dismissal was filed (state's grounds to dismiss were non-applicable), or do I need to just re-indict? This dude has been up to the hospital a few times for mental reasons and is definitely someone to be concerned about letting loose.

Probably cleaner to seek a new indictment, assuming no limitations issues. The judge MAY have continuing jurisdiction over the matter, depending on when the dismissal was signed, but if you can eliminate that issue with a new indictment, I would avoid complicating things.

the order was Signed July 19 2013. I've set a hearing on the matter August 2 (the next time the judge signing the order will be on the bench). Is that enough time? I can't find a rule or case that speaks of this issue.

Unfortunately, our grand jury will not be meeting again until late August, and that'd be the soonest I could re-indict.

I really would prefer not to complicate things if I could, but for the reasons originally posted, it's just one of those times...

I assume that the original arresting agency can seek a warrant for the arrest of the defendant, using the same facts as the original P/C affidavit. That should at least get the defendant picked up and held (if he can't post bond) until you can indict.

It has been my position, on admittedly different facts, that once a case is dismissed, the court loses jurisdiction over the case and has no power or authority to revive or reassert it.

reindict