Dismissals: Difference between revisions
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Whether to allow a third refile would be litigated under PC1387 and PC1387.1. Miller v. Superior Court (2002) discusses what's "excusable neglect" and that prosecutor has burden of proof that there was excusable neglect. by a preponderance of the evidence. People v. Rodriguez (2013) 217 Cal.App.4th 326, seems to "excusable neglect" is meant for clerical errors, not for legal errors, because the remedy for legal errors is an appeal. | Whether to allow a third refile would be litigated under PC1387 and PC1387.1. Miller v. Superior Court (2002) discusses what's "excusable neglect" and that prosecutor has burden of proof that there was excusable neglect. by a preponderance of the evidence. People v. Rodriguez (2013) 217 Cal.App.4th 326, seems to "excusable neglect" is meant for clerical errors, not for legal errors, because the remedy for legal errors is an appeal. | ||
"It is likely the failure of the People to afford sufficient time to account for complications resulting from COVID-19 exposure is excusable neglect." (Barron v. Superior Court (Apr. 13, 2023, F085382) | |||
[https://www.courts.ca.gov/opinions/documents/F085382.PDF Barron v. Superior Court (Apr. 13, 2023, F085382)] | PC1387(c) allows for a third refile, if the first filing was dismissed under PC859b, 861, 871, or 995. In [https://www.courts.ca.gov/opinions/documents/F085382.PDF Barron v. Superior Court (Apr. 13, 2023, F085382)], first dismissal was under PC1385, and second dismissal was under PC859b for 60-day violation, so a third filing didn't fall under PC1387(c). | ||
===Misdemeanor=== | ===Misdemeanor=== | ||
Revision as of 19:08, 14 April 2023
Number of dismissals
Felony
Whether to allow a third refile would be litigated under PC1387 and PC1387.1. Miller v. Superior Court (2002) discusses what's "excusable neglect" and that prosecutor has burden of proof that there was excusable neglect. by a preponderance of the evidence. People v. Rodriguez (2013) 217 Cal.App.4th 326, seems to "excusable neglect" is meant for clerical errors, not for legal errors, because the remedy for legal errors is an appeal.
"It is likely the failure of the People to afford sufficient time to account for complications resulting from COVID-19 exposure is excusable neglect." (Barron v. Superior Court (Apr. 13, 2023, F085382)
PC1387(c) allows for a third refile, if the first filing was dismissed under PC859b, 861, 871, or 995. In Barron v. Superior Court (Apr. 13, 2023, F085382), first dismissal was under PC1385, and second dismissal was under PC859b for 60-day violation, so a third filing didn't fall under PC1387(c).