State v. Herring

547 A.2d 6, 209 Conn. 52, 1988 Conn. LEXIS 264
CourtSupreme Court of Connecticut
DecidedSeptember 6, 1988
Docket13271
StatusPublished
Cited by16 cases

This text of 547 A.2d 6 (State v. Herring) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Herring, 547 A.2d 6, 209 Conn. 52, 1988 Conn. LEXIS 264 (Colo. 1988).

Opinion

Callahan, J.

On September 24, 1985, the defendant, Perry Lee Herring, was charged in two separate informations; in one, with assault in the third degree [53]*53in violation of General Statutes § 53a-61,1 and in the other, with threatening and harassment in violation of General Statutes §§ 53a-622 and 53a-1833 respectively. On July 1,1987, in open court, the state attempted to enter nolles prosequi as to all the charges in both informations. The ostensible reason for the entry of the nolles, as stated by the assistant state’s attorney, was that the accused had received a sentence of fifty years to life the previous day in Hartford Superior Court and was also scheduled to be returned to New Jersey to finish an eighteen year term of imprisonment in that state. [54]*54Apparently the state felt that to persist in the prosecution of these pending misdemeanors would be akin to carrying coals to Newcastle.4

When the state indicated that it intended to enter nolles, the defendant objected and moved that the charges against him be dismissed pursuant to General Statutes § 54-56b5 and Practice Book 726.6 The trial court, however, allowed the nolles to enter and summarily denied the defendant’s motions to dismiss. The assistant state’s attorney did not make, or attempt to make, any representations that a material state’s witness had died, disappeared or become disabled, or that material evidence had disappeared or been destroyed, and that a further investigation was therefore necessary. See General Statutes § 54-56b. From the transcript, however, it appears that he was afforded no opportunity to do so by the trial court and the defendant was similarly not afforded an opportunity to respond. Such representations were essential before nolles could enter to the pending charges against the defendant over his objection. State v. Lloyd, 185 Conn. [55]*55199, 202, 440 A.2d 867 (1981). Without those representations, the trial court’s allowance of the entry of the nolles was plain error. State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981); State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980); see also LaReau v. Reincke, 158 Conn. 486, 492-93, 264 A.2d 576 (1969).

The question that confronts this court is whether we have jurisdiction to address the trial court’s error. Generally, a party aggrieved by a decision of the trial court may appeal only from a final judgment. General Statutes §§ 52-2637 and 51-197a;8 Practice Book § 4000;9 State v. Coleman, 202 Conn. 86, 89, 519 A.2d 1201 (1987); State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). The final judgment in a criminal case ordinarily is the imposition of sentence. In re Juvenile Appeal [56]*56(85-AB), 195 Conn. 303, 306, 488 A.2d 778 (1985); State v. Parker, 194 Conn. 650, 652, 485 A.2d 139 (1984). A nolle prosequi is obviously not a final judgment and generally an appeal would not lie solely from the entry of a nolle prosequi. State v. Lloyd, supra, 207. Consequently, we must decide if this case falls within that narrow exception to the rule of finality that allows an intermediate appeal of interlocutory trial court rulings that, if erroneous, cannot later be remedied by reversal of a conviction after trial. Id.; State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). We conclude that the entry of nolles to the charges against the defendant under the factual circumstances evident here fits within that exception and warrants the exercise of our judicial oversight. State v. Lloyd, supra.

If the trial court had adhered to the dictates of § 54-56b, the defendant, when he objected to the attempt of the state to enter nolles, would have been entitled to either a trial or a dismissal unless the state made the requisite representations that would have allowed nolles to enter. Id., 202. Instead, the trial court allowed nolles to enter as to the charges against the defendant without affording him an opportunity to present arguments in opposition thereto or giving the state the opportunity to make the necessary representations justifying their entry. If the present state of affairs is acquiesced in by this court the statutory right of the defendant to have the charges against him disposed of in accordance with the legislative mandate of § 54-56b will never be accommodated. Further, the failure to address the trial court’s error could lead to an indefinite postponement of the criminal proceedings against the defendant that may, under the circumstances, violate his constitutional right to a speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 219-22, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967); State v. Lloyd, supra, 208. The defendant’s statutory and constitutional rights [57]*57cannot be vindicated by a trial or other proceeding that, in all likelihood, will never take place unless an interlocutory appeal is permitted. State v. Lloyd, supra.

Therefore, this defendant is in much the same position as the defendant in State v. Lloyd, supra, 207, wherein we stated: “The purpose of providing judicial oversight over the entry of a nolle prosequi to which the defendant timely objected is to protect the defendant from the repeated initiation and termination of charges that, while discharging him from custody, leave him in legal limbo.” This defendant too, finds himself in that vacuous place of oblivion.

Since the effect of the entry of the nolles was only to terminate this particular prosecution without an acquittal and without placing the defendant in jeopardy, he remains vulnerable to reinstatement of a prosecution against him. State v. Gaston, 198 Conn. 435, 440-41, 503 A.2d 594 (1986); State v. Lloyd, supra, 201; Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 5, 273 A.2d 709 (1970), cert. denied, 401 U.S. 938, 91 S. Ct. 931, 28 L. Ed. 2d 218 (1971). Even if the statute of limitations as to these misdemeanors10 were to expire and the erasure statute11 become oper[58]*58ative to deprive the state of access to records concerning these charges so as to render reinitiation of prosecution difficult and improbable, reinitiation of prosecution is not impossible.

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Bluebook (online)
547 A.2d 6, 209 Conn. 52, 1988 Conn. LEXIS 264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-herring-conn-1988.