State v. Jaeger

886 P.2d 53, 251 Utah Adv. Rep. 50, 1994 Utah LEXIS 78, 1994 WL 627499

• Court: Utah Supreme Court
• Decided: November 9, 1994
• Docket: 920139
• Status: Published

Opinions

ON CERTIORARI TO THE UTAH COURT OF APPEALS

ORME, Court of Appeals Judge:

The State sought to appeal an order dismissing criminal charges against defendant following a preliminary hearing. The Utah Court of Appeals dismissed the appeal for lack of jurisdiction. We reverse and remand to the court of appeals for consideration of the appeal on its merits.

FACTS

The material facts are not in dispute. Donald L. Jaeger was charged by information with murder in the second degree, a first degree felony in violation of Utah Code Ann. § 76-5-203 (1990). A preliminary hearing was held before Judge Michael L. Hutchings, who was acting as a magistrate in accordance with Rule 7 of the Utah Rules of Criminal Procedure. See also Utah Code Ann. § 78-7-17.5(l)(f) (1992) (authorizing magistrates to conduct preliminary hearings to determine probable cause). After having the matter under advisement for several weeks, Judge Hutchings issued a seventeen-page memorandum decision in which he weighed the State’s evidence in light of the applicable standard for establishing probable cause. Based on his factual findings and legal analysis, Judge Hutchings concluded that no reasonable jury could find defendant guilty of homicide based on the evidence presented. He therefore ruled that there was insufficient evidence to establish the probable cause necessary to bind defendant over for trial. As a result, Judge Hutchings dismissed the information and discharged defendant pursuant to rule 7(h)(3) of the Utah Rules of Criminal Procedure.

The State filed a timely notice of appeal to this court.¹ The appeal was subsequently transferred to the Utah Court of Appeals. Prior to oral argument before the court of appeals, this court issued State v. Humphrey, 823 P.2d 464 (Utah 1991), which held that a magistrate’s decision to bind a defendant over for trial is not a final, appealable order. Id. at 468. Based on the court of appeals panel’s reading of Humphrey, it struck the scheduled oral argument and issued an unpublished per curiam decision dismissing the State’s appeal for lack of jurisdiction. The State then filed a petition for a writ of certio-rari, which was granted.

ANALYSIS

The State argues that there is jurisdiction for its appeal because Judge Hutchings’ order constituted a final judgment of dismissal. We agree.

Under Utah law, “[a]n appeal may be taken by the prosecution from ... a final judgment of dismissal.” Utah Code Ann. § 77-18a-l(2)(a) (Supp.1994). Although rule 7(h)(3) of the Utah Rules of Criminal Procedure provides that “dismissal and discharge” following a preliminary hearing “do not preclude the state from instituting a subsequent prosecution for the same offense,” this court has ruled that due process will in some circumstances preclude refiling criminal charges. See State v. Brickey, 714 P.2d 644, 646-48 (Utah 1986).

In Brickey, the court circumscribed rule 7(h)(3)’s apparently unfettered grant of prosecutorial discretion by establishing limits on the State’s ability to refile charges that have been dismissed for insufficient evidence. Id. at 647-48. As an aspect of defendant’s right to due process, the State cannot refile criminal charges dismissed for lack of evidence unless it can introduce new or additional evidence, or demonstrate other good cause that justifies refiling. Id.

Thus, dismissing an information for lack of probable cause can result in a final judgment of dismissal. Where the prosecutor has made his or her best case at the preliminary hearing and has no new or additional evidence to present or other good cause for refiling, the case is at an end. The prosecutor cannot refile the charges or seek a second opinion from another magistrate. In such cases, the dismissal of charges, when coupled with the State’s inability to refile under Brickey, clearly constitutes “a final judgment of dismissal,” as contemplated by section 77-18a-l(2)(a), which the State is entitled to appeal.

Nor does this court’s opinion in State v. Humphrey, 823 P.2d 464 (Utah 1991), undercut the State’s right to appeal such a judgment of dismissal. In Humphrey, this court ruled that there is no right to appellate review of a magistrate’s decision to bind a defendant over for trial. Id. at 468. Despite some language which, on the surface, might appear to have destined the opposite decision to the -same fate,² the court did not have before it the question of whether there is a right of appeal from a decision not to bind a defendant over for trial. See id. at 467-68.

Despite some superficial similarity between the two, a decision to bind a defendant over for trial and a decision to dismiss the charges against him are fundamentally different. The magistrate’s decision to bind over is interlocutory; it keeps the case alive and on track. As such, the magistrate decides nothing more than that the case will proceed.³ In contrast, a decision not to bind over but rather to dismiss brings the case to an abrupt end if the strict requirements of Brickey cannot be surmounted. It would be anomalous, indeed, if such a final adjudicative decision were not subject to appeal.⁴

CONCLUSION

Given the proscriptions of Brickey, the order dismissing the information against defendant and discharging him constituted “a final judgment of dismissal” under Utah Code Ann. § 77-18a-l(2)(a) (Supp.1994). Therefore, the State was entitled to appeal, and the court of appeals, following transfer of the case, had jurisdiction over the appeal. Accordingly, we reverse the decision dismissing for lack of jurisdiction and remand this case to the court of appeals for resolution on its merits.

STEWART, Associate C.J., and HOWE, J., concur.

1 . The fact that the State has proceeded in this manner rather than by refiling the charges and putting on new evidence must be viewed as a definitive concession by the State that it is unable to refile the charges, given State v. Brickey, 714 P.2d 644, 646-48 (Utah 1986).

2 . Humphrey addresses the difference between judges and magistrates, stating that the orders of judges are appealable whereas the orders of magistrates are not, as they are nonadjudicative. See State v. Humphrey, 823 P.2d 464, 467-68 (Utah 1991). This is true in the preliminary hearing context to the extent that the magistrate does nothing more than move the case along by issuing a routine interlocutory bind-over order, as was the case in Humphrey and as happens following the vast majority of preliminary hearings. However, where the prosecution has presented all the evidence it has and dismissal of the case ensues, at least given Brickey an adjudication has occurred that is as final as any judgment of dismissal can be. It is as though Judge Hutchings, who took off his judicial hat and put on his magistrate's hat to conduct the preliminary hearing, removed that hat and put his judicial hat back on just prior to entering his judgment of dismissal and discharge.

3 . Nonetheless, the defendant has an immediate opportunity for review of the bind-over order. When the magistrate binds the defendant over for trial, the defendant may move to quash the information in the district court which will hear the case. See Utah R.Crim.P. 12(b); Humphrey, 823 P.2d at 466. Upon the filing of such motion, the district court may review the magistrate's determination that probable cause exists. See Humphrey, 823 P.2d at 466. If the court denies the motion, the defendant may then petition for an interlocutory appeal. Id. at 468 n. 9.

The State, however, has no comparable procedural mechanism allowing reexamination of a decision not to bind a defendant over for trial. Logic suggests that some mechanism must exist for correcting the mistaken dismissal of charges where refiling is not an option. A plain reading of Utah Code Ann. § 77-18a-l(2)(a) (Supp.1994) shows that the Legislature has provided that mechanism by expressly permitting the State to appeal, without stated limitation, any "final judgment of dismissal.”

4 . Given the fundamental distinction between a bind-over decision and a decision not to bind over, we need not worry that recognizing the State’s right to an immediate appeal might seem less than fully symmetrical with the relief available under Humphrey to defendants who are bound over. See 823 P.2d at 468.