Dismissal of charges with prejudice; Nolle prosequi; Costs

The court held that the trial court abused its discretion by dismissing the charges against defendant with prejudice and by imposing costs on the prosecution. Thus, it vacated the trial court’s order dismissing the case with prejudice and imposing costs on the prosecution, and remanded. On remand the court directed that the case be reassigned to a different judge, which will require the assignment of a visiting judge. Under the circumstances, the court found that “the trial court’s refusal to select the jury that day and continue the trial two days later to be unnecessarily unyielding. To summarize, the scheduling problem arose from understandable confusion based on the trial court’s instructions at the final pretrial conference in” another case before it. There was “no suggestion that the prosecution was attempting to delay or otherwise was unprepared for trial; her witnesses simply were not present because she had misunderstood the trial court’s instruction, which the trial court sent via a comment to a different assistant prosecutor in a different case.” There also was “no indication that the one- or two-day delay would have prejudiced the defendant; the trial court granted defendant two adjournments in the weeks before trial, and defense counsel assured the trial court that he was available for trial beginning either Tuesday or Thursday. Because the prosecution offered a reasonable explanation for the nolle prosequi, and there is no indication that the prosecution acted in a way that was unconstitutional, illegal, or ultra vires, the trial court abused its discretion by dismissing the charges against defendant with prejudice.” Further, the court found “no statutory authority for the imposition of costs in this matter.”