Chapter 7 Pre-Trial Motions to Dismiss

• Jurisdiction: United States

Chapter 7 Pre-Trial Motions to Dismiss

General Pre-Trial Motions to Dismiss

Motion to Dismiss Based on Improper Jurisdiction

"When a public offense is committed in part in one jurisdictional territory and in part in another; Or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories; The jurisdiction of such offense is in any competent court within either jurisdictional territory." Cal. Penal Code §781. Simply put: If a crime is committed in two or more jurisdictions, either jurisdiction has authority over the case. In addition, if a crime is merely started in one jurisdiction, but completed in another, jurisdiction is proper in the origins of the preparation of a crime. If a defendant begins a crime out-of-state, but consummates the crime within the state, the state has jurisdiction over the crime. Cal. Penal Code §778.

Motion to Dismiss Based on Prior Dismissals

To protect against harassment and abuse of speedy trial rights, public policy curtails the number of times a prosecution can commence against a defendant. Under the general rule, for a misdemeanor case, one prior dismissal bars re-filing of the case, and for a felony, two prior dismissals bars re-filing of the case. Cal. Penal Code §1387. However, there is an exception for violent felonies. If the underlying crime is a "violent" felony (as defined by Cal. Penal Code §667.5), a prosecution office can file a third case if either of the prior dismissals was due solely to excusable neglect and not to bad faith on the part of the prosecutor. Cal. Penal Code §1387.1. The two-dismissal rule does not bar the filing of a superseding indictment. Cal. Penal Code §1387(c). The one/two/three-dismissal rule does not apply to juvenile cases. In re Nan P. (1990) 230 Cal.App.3d 751.

If a case must be re-filed, a preferable short-cut is to use Cal. Penal Code §1387.2. Under that procedure, in lieu of a prosecutor actually going to the clerk's office and re-filing the necessary paperwork to resume a case, the parties can agree to deem the existing file and case number as a new prosecution. This procedure saves a tree and does not waste paper.

1385 Motion—Motion to Dismiss Based on Sentencing Factors or Interest of Justice

A court has authority to dismiss an entire case or just parts of a case in furtherance of justice. Courts often refer to this as 1385 power. Unless specifically prohibited by law, a court can strike a charge, an...