District of Columbia v. Weams

208 A.2d 617, 1965 D.C. App. LEXIS 168

• Court: District of Columbia Court of Appeals
• Decided: March 31, 1965
• Docket: 3600-3609
• Status: Published

Opinions

HOOD, Chief Judge:

Appellees were separately charged with disorderly conduct. When the cases came on for joint trial on August 6, 1964, a continuance was requested by the prosecuting attorney because of the unavailability of a government witness. After a discussion between the trial judge and counsel for both sides respecting a possible stipulation as to the absent witness’s testimony, the court ordered a recess. When court reconvened, the prosecuting attorney announced he had -nol-prossed all cases. When the right to do so was challenged by defense attorneys, the trial judge refused to accept the nolle prosequi and directed that the cases be dismissed for want of prosecution with prejudice.

On August 17, 1964, appellees were again charged with the same offenses in new in-formations. When the cases came on for trial, another judge granted motions to quash these new informations on the ground that “under the District of Columbia Code, Title 23, Section 10S, the prosecutor, whether it be United States Government or Corporation Counsel’s Office, has the same right of appeal as the defendant would have, and * * * should have exercised that right [at the time the first informations were dismissed].” These appeals ensued.

The sole question before us is whether the trial judge properly quashed the second informations. The government argues that it is not estopped from collaterally attacking the judgments of dismissal of the first informations by its failure to appeal therefrom, because, it argues, jurisdiction over the cases had been lost by the trial judge when the first informations were nol-prossed prior to their dismissal by him. It is the government’s position that, in the absence of statute or rule of court,¹ the right of the prosecutor to enter a nolle prosequi is not subject in any manner to approval of the court, that when the in-formations were nol-prossed the charges were no longer before the court, and that the trial court’s orders of dismissal with prejudice were nullities and had no binding effect on the later informations.

It is true that at common law the prosecution of criminal offenses was in the absolute control of the prosecuting attorney to the extent that the court had no power to compel a prosecution or to order the entry of a nolle prosequi. Nevertheless, throughout the cases on the subject there runs the thought that the right of the prosecutor to enter a nolle prosequi is subject to interference by the court if the right is oppressively or arbitrarily used.² As the government here concedes in its brief, judicial restraint may be exercised when the prosecutor’s authority to nol-pros is exercised in a manner that is “scandalous”, “corrupt”, or “capricious and vexatiously repetitious.”

If the prosecutor’s authority is subject under any condition to judicial restraint, his authority is not absolute though it may be almost absolute. It follows that when the court in each of the instant cases refused to accept the nolle prosequi and entered a dismissal with prejudice, its action was not a nullity although it may have been completely erroneous. An erroneous ruling or action is binding unless vacated or reversed. The government could have appealed from the dismissals with prejudice, but it did not exercise that right. The dismissals with prejudice therefore are binding and constitute a bar to the second prosecutions. The second informations were properly quashed.

Affirmed.

1 . Rule 48(a) of the Federal Rules of Criminal Procedure does not apply to the trial court and it has no similar rule. There is no local statute on the subject.

2 . See, e. g., People ex rel. Elliott v. Covelli, 415 Ill. 79, 112 N.E.2d 156 (1953); State on Inf. of McKittrick v. Graves, 346 Mo. 990, 144 S.W.23 91 (1940); State v. Charles, 183 S.C. 188, 190 S.E. 466 (1937); Commonwealth v. Dascalakis, 246 Mass. 12, 140 N.E. 470 (1923); United States v. Krakowitz, 52 F.Supp. 774 (S.D.Ohio 1943); Ex Parte Altman, 34 F.Supp. 106 (S.D.Cal.1940).