Category Archives: Washington Court of Appeals

State v. Hammock: Home-Made Guns Are Still Firearms

Assault, Constitutional Rights, Firearm, Homicide & Manslaughter, Jury Trial, Uncategorized, Washington Court of Appeals, , ,

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In State v. Hammock, the WA Court of Appeals Division II decided that a hollowed-out bolt, in which a bullet is inserted, and when used with a hammer to strike the bullet,  IS a firearm.

After an extended period of using drugs and arguing with Mr. Ford, defendant Hammock handed his girlfriend, Ms. McKee, a .22-caliber bullet, a hollowed-out bolt with a hexagonal head, and a ball peen hammer, and told her to shoot Ford.  Hammock had previously used the device to discharge a bullet.

Hammock inserted the shell into the head end of the bolt.  McKee placed the  non-head end of the  bolt against Ford’s head, struck the bullet with the ball peen hammer, discharged the bullet into Ford’s head.  Ford did not die immediately.

The following details are gruesome.  About 20 minutes later, Hammock jumped over the bed without warning  and repeatedly hit Ford  in the head  with a hammer.  Ford remained conscious for several more hours.  Later Hammock exited the room and returned with a metal object similar to a meat cleaver and struck Ford in the head two or three times.

Ford remained alive and conscious, so Hammock knotted an extension cord around Ford’s neck and placed a white plastic bag over Ford’s head.  Hammock also struck Ford again with the metal object once or twice.  Ford ultimately died from a gunshot wound to the head, blunt force impacts to the head, and ligature strangulation due to an extension cord knotted around his neck.

The State charged Hammock First Degree Murder, and numerous Drug Offenses.  A forensic scientist with the Washington State Patrol Crime Laboratory testified that the .22-caliber bullet is a “rimfire” cartridge, meaning that its primer, the explosive, is around the rim of the cartridge. The primer ignites the gunpowder that provides the gas that propels the bullet.  The scientist was able to discharge a bullet from the bolt by striking the rim of the cartridge with a ball peen hammer.  The jury found Hammock guilty of all charges, including possession of a deadly weapon.

Court of Appeals reasoned that the bolt, hammer, and bullet, when considered together, constitute an instrument of offensive combat.  Hammock inserted the bullet into the bolt, handed it back to McKee, and told her to shoot Ford.  McKee put the bolt up to Ford’s head, struck it with a hammer, and discharged the bullet into Ford’s head.  Ford died partly from this gunshot wound to the head.

This constitutes an “instrument” used to injure or kill someone, reasoned the Court.  Additionally, the Court held that the bolt system meets the definition of “device” as well under former RCW 9.41.010(1).  Under Webster’s Dictionary, a “device” is “something that is formed or formulated by design and usage.

Consequently, the Court upheld Hammocks guilty verdict.

My opinion?  As I said above, I’m dedicating this post to NRA members, gun enthusiasts, and 2nd Amendment buffs.  Although I’m clearly NOT providing legal advice – I cannot do that over the internet – this bit of public information should put gun enthusiasts on pause.  Home-made guns are still firearms; even if the moving parts are separated from each other.  Period.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Harris: A Defendant May Argue Gant On Appeal Even Though It Was Not Argued At Trial.

Constitutional Rights, felony, Firearm, Jury Trial, law enforcement, marijuana, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, United States Supreme Court, Washington Court of Appeals, , ,

The Courts and the Constitution Arizona v Gant

In State v. Harris, the  WA Court of Appeals held that a defendant who did not bring a suppression motion prior to trial, may assert a claim under Arizona v. Gant  for the first time on appeal.

Defendant Stuart J. Harris, Jr. appealed his conviction for First Degree Unlawful Possession of a Firearm.  He argued  sufficiency of the evidence,  additional evidentiary error, and prosecutorial misconduct.   While this appeal was pending, the United States Supreme Court decided Arizona v. Gant, which deals with the scope of a car search pursuant to the arrest of its driver.  The Court of Appeals Division II allowed the parties to provide supplemental briefs on the Gant issue.

For those who don’t know, Gant rejected the reading of New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d (1981), that predominated in the lower courts, namely, that the Fourth Amendment allows a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.

In departing from Belton, the Gant Court held instead that police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  Gant, 129 S. Ct. at 1723.3

Here, the Court of Appeals reasoned the facts in Gant were similar to those here.  Harris was not within reaching distance of the passenger compartment of the car at the time of its search, and there was no reason to believe that the car contained evidence related to the offense for which he was arrested (driving with a suspended license). Therefore, absent other legal support for the search, the officer’s search of  the car was unlawful.

Furthermore, Gant applies retroactively because “A party should be allowed to take advantage of a decision rendered during the pendency of his case, even if he had not reserved the point decided, if the decision could not have reasonably been anticipated.”  State v. Harris at 6-7, quoting Judge Posner of the Seventh Circuit.

My opinion?  I’m a HUGE fan of the Arizona v. Gant opinion (please see my Dec. 24, 2009 blog), and by extension, I’m a HUGE fan of this opinion. Generally, United States Supreme Court decisions that announce new constitutional rules governing criminal prosecutions apply retroactively to all criminal cases not yet final on appeal.  I’m happy the Court of Appeals stuck to the law; and supported Gant, to boot.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Saunders: A Court Should Not Grant Continuances Without Valid Reasons

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In State v. Saunders, the WA Court of Appeals held that courts should not grant continuances without valid reasons.

The defendant’s trial was continued several times.  He objected at every hearing before the court (yes, defense counsel asked for some of them).  One continuance was for further negotiations.  Another was because the case was pending in the prosecutor’s negotiating unit, even though the court noted there was no good explanation.  A third continuance happened because the case was not yet assigned to a trial prosecutor.

The Court reasoned that all three continuances were without adequate basis.  Since there were no convincing/valid reasons for the continuances, the charges were dismissed for violation of CrR 3.3; which is Washington’s speedy trial rule:

“Absent convincing and valid reasons for the continuances granted on January 8, February 20, or March 18, the trial court’s order granting the three continuances were “manifestly unreasonable, exercised on untenable grounds and for untenable reasons.” Downing, 151 Wn.2d at 272 (quoting Junker, 79 Wn.2d at 26.  The trial court abused its discretion in granting further delays in commencing Saunders’s trial.  Under these circumstances, we reverse and remand for entry of an order dismissing the charge against Saunders under CrR 3.3(h).”  ~WA Court of Appeals

My opinion?  Excellent, excellent, excellent!  First, I admire defendants who exercise their rights to speedy trial.  Whatever outcome that’s going to happen will inevitably happen faster because both sides are forced to work the case up.  True, there are times when rushing to battle is not always the best strategy.

Some cases get better with age.  Memories fade.  Witnesses recant and/or move away.  Prosecutors want to dump old cases when their caseloads get too heavy.  Nevertheless, what I deeply despise — and I’ve seen it happen — is when courts lack any good reason to grant the prosecutor’s wishes for continuances.  It’s incredibly frustrating.  State v. Saunders is a great step in the right direction.

This case is vastly similar to State v. Kenyon, which I discussed in my October 7 blog (Indeed, the Saunders court expressly based much of its reasoning from the Kenyon decision).  Clearly, our courts are giving teeth back to the  Speedy Trial Rule.  Good!  I believe the larger reason why this is happening is because shrinking state/judiciary budgets are, consequently, taking away the luxury to continue criminal cases.  I, for one, enjoy the change.  I’d rather go to trial than make up reasons to keep continuing cases.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Iniguez: How Were the Defendant’s Speedy Trial Rights NOT Violated?

Constitutional Rights, Discovery, Due Process, felony, Jail, Speedy Trial & Continuances, Violent Crime, Washington Court of Appeals, Washington Supreme Court, , ,

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Can’t agree with the Supremes on this one . . .

In State v. Iniguez, the WA Supreme Court decided a defendant’s speedy trial rights were not violated even though a defendant waited in jail 8 months and objected to all continuances.

Following his arrest on First Degree Robbery, Mr. Iniguez remained in custody pending a joint trial with his codefendant.  An 8-month delay between arraignment and trial took place.  During this time, the State moved for a total of four trial continuances, the last of which the State sought because it learned — belatedly — that a key witness was out of town.  Iniguez objected to all continuances.  The trial court denied his objections and pretrial motions.  At trial, the jury found Iniguez guilty.  He appealed.

The Court of Appeals reversed Iniguez’s conviction.  The court held the eight-month delay between arrest and trial was prejudicial and violated Iniguez’s constitutional right to speedy trial.

However, the WA Supremes decided the delay did not violate the time-for-trial court rule, CrR 3.2, and did not violate the defendant’s Sixth Amendment or Const. art. I, § 22 constitutional right to a speedy trial.

The Court reasoned that Article I, Section 22 of the state constitution does not offer greater protections than the Sixth Amendment to the U.S. Constitution. Using the six-part Gunwall test, the Court determined there was no clear reason to find greater protections in the state constitution, so the two provisions should be applied similarly.

Also, under the four-factor Blakely analysis, the Court also reasoned that although the circumstances of the delay were substantial enough to presume harm to Iniguez, the level of violation of Iniguez’ speedy trial rights wasn’t enough to justify dismissing his case.

The Court ruled 5-4 against Iniguez, holding there was no constitutional violation of his right to a speedy trial.

My opinion?  My thoughts are similar to dissenting Judge Sanders.  I agree with the majority opinion that the length of delay in this case — coupled with the fact that Iniguez spent all of it in custody — gave rise to a presumption of prejudice.  The defendant’s trial delay was nearly nine months.  The delays arose because of the State’s need to interview witnesses, joinder with the co-defendant, scheduling conflicts, and the late discovery of the unavailability of a key witness one week prior to trial.

None of the delays were caused by Iniguez himself.  Indeed, he objected to continuing his case at every opportunity!  Finally, Iniguez was prejudiced because he was in jail during this entire process.  This is very substantial.  Incarceration carries detrimental effects: loss of job, disruption of family life, idleness, etc.  Time spent in jail is simply dead time.

How were Iniguez’s Speedy Trial rights NOT violated?

Again, bad decision . . .

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Stately: Vehicular Homicide By Disregard Is NOT A Violent Offense; Some Defendants Eligible for First Offender Waiver.

Due Process, DUI, felony, First Time Offender Waiver, Homicide & Manslaughter, Legislation, Sentencing, Violent Crime, Washington Court of Appeals, , ,

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In State v. Stately, the WA Court of Appeals held that Vehicular Homicide By Disregard is NOT a Violent Offense and that some defendants are eligible for the First-Time Offender Waiver.

About a week before her 18th birthday, Ms. Stately drove a car while intoxicated.  Unfortunately, she caused an accident that killed her best friend.  Stately was charged — and later convicted — of Vehicular Homicide by Disregard under RCW 46.61.520(1)(c).  At sentencing, the State recommended 17 months of incarceration.  However, Stately argued she was entitled to a first-time offender waiver under former RCW 9.94A.650 because her crime was not defined as a violent offense.

The trial court agreed.  Stately was sentenced under the first-time offender waiver to 30 days of incarceration, 12 months of community custody, and 4,000 hours of community restitution (community service).

For those who don’t know, a “first-time offender” is any person who has no prior felony convictions.  At sentencing, the court may waive the imposition of a sentence within the standard sentencing range.  The sentence imposed under the first-time offender provision is not an exceptional sentence but is, rather, a waiver of the standard sentence range.

On appeal, the Prosecution argued that Stately was not eligible for a first-time offender waiver because she committed a violent offense.

However, the Court of Appeals thought different.  It reasoned that there are three types of vehicular homicide, all currently class A felonies.  Subsection (xiv) lists the first two types, homicide by intoxication and recklessness, but does not include the third type, homicide by disregard.  Former RCW 9.94A.030(50)(a)(xiv).

The court further reasoned, “If we read the statute to define Vehicular Homicide by Disregard as a violent offense simply because it is a class A felony, then subsection (xiv) would be superfluous.  We presume, however, that the legislature does not include superfluous language and we interpret statutes to give meaning to each section.

Here, it is impossible to harmonize the statute’s terms in subsection (i) with its terms in subsection (xiv).  The later subsection, relating specifically to vehicular homicide, is more specific than subsection (i), which relates generally to all class A felonies.  Applying the specific-general doctrine, the specific terms of subsection (xiv) prevail and Stately’s Vehicular Homicide by Disregard conviction is not a violent offense”  (emphasis supplied).

My opinion?  Again, excellent decision.  It’s pleasing when our legal system takes an academic approach to cases by methodically reviewing the WORDING and LEGISLATIVE INTENT of statutes.  Fortunately, that’s exactly what happened here.  The court avoided a huge miscarriage of justice by refusing to allow the general rule of “violent offense” swallow legislative exceptions to the rule.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Seattle v. St. John: Police May Obtain a Search Warrant For a Blood Sample When Motorists Refuse to Give Breath Test.

Blood Test, Constitutional Rights, Drug Offenses, Due Process, DUI, law enforcement, marijuana, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington Court of Appeals, Washington State Patrol, Washington Supreme Court, , ,

Can I Refuse A Blood Test? - Welch and Avery

In Seattle v. St. John, the WA Supreme Court held that police may obtain a search warrant for a blood sample when motorists refuse to give a breath test.

After crashing his motorcycle in Seattle, Robert St. John was investigated for DUI. A police officer asked St. John to consent to a blood alcohol test.  St. John refused.   The officer obtained a warrant for the test.  The results were suppressed in municipal court based on a broad interpretation of a provision of the Implied Consent Law that prohibits performing the test once consent has been refused. The superior court reversed and the Court of Appeals certified three questions to the Supreme Court:

1. Does the implied consent statute allow the State to administer a blood alcohol test pursuant to a warrant after a driver has declined a voluntary blood alcohol test?

2. Does an implied consent warning violate due process if it does not inform drivers that an officer may seek a warrant for a blood alcohol test even if the driver declines the voluntary blood alcohol test?

3. Does the doctrine of equitable estoppel bar the State from seeking a warrant for a blood alcohol test after informing drivers that they may refuse the voluntary blood alcohol test?

The WA Supreme Court upheld the superior court and allowed the blood test evidence.  They reasoned that the Implied Consent law restricts performing a blood test pursuant to that law, but does not prohibit performing a blood test pursuant to a lawfully issued warrant (RCW 46.20.308). Similarly, the officer’s statements about the Implied Consent law did not foreclose his obtaining the warrant.

I echo the dissenting opinion of Justice Charles Sanders.  Simply put, an officer cannot force a driver to submit to a blood test if the driver refuses consent.  However, under the majority opinion’s reasoning, a driver’s refusal to consent to a Breath test is essentially meaningless.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Kyllo: When It Makes Sense, Argue Self Defense

Assault, Constitutional Rights, Due Process, felony, Ineffective Assistance, Jury Trial, Self-Defense, Violent Crime, Washington Court of Appeals, Washington Supreme Court, , ,

Undercover inmate describes violence in jail

In State v. Kyllo the WA Supreme Court held that the  jury instruction misstated the law on Self-Defense. Moreover, the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured.

On June 12, 2004, while an inmate at the Cowlitz County jail on other charges, Mr. Kyllo was involved in a fist fight with another inmate during the course of which Kyllo bit the other inmate’s ear off. Kyllo was charged with second degree assault and he claimed he acted in self-defense.

At trial, Defense counsel proposed a self-defense jury instruction that stated:

A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.

Kyllo was convicted on the charge of second degree assault. On appeal, he asserted ineffectual assistance of counsel, arguing that the instruction above improperly lowered the State’s burden of proof. The Supreme Court agreed, with Justice Barbara Madsen writing a unanimous opinion.

The Court held that the jury instruction misstated the law, and that the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured — “One is not required to believe he is about to be grievously harmed or killed.”

The Court held that Kyllo was denied effective assistance of counsel, and remanded the case for a new trial.

My opinion?  Excellent decision.  Reminds defense attorneys to stay cognizant of the jury instructions they provide.  For those who don’t know, a jury instruction is an instruction given by the court to a jury at the conclusion of presentation of all evidence in a trial, and after the lawyer’s closing arguments, to advise the jury of the law that applies to the facts of the case, and the manner in which they should conduct their deliberations.  The attorneys prepare the instructions.

Here, the defense attorney gave the “Acting on Appearances” instruction.  The instruction presents a good starting point for the circumstances surrounding this particular case (Convict A is mad-dogging Convict B, Convict B attacks Convict A first  — and acting on Convict A’s appearances — because he believes Convict A will attack and get the advantage of surprise).  Unfortunately, the instruction, by itself wasn’t enough.

As a matter of practice, I believe both a self defense instruction AND and “Acting on Appearances” instruction work best in combination with each other.  Speaking from my own trial experience, everyone on the street embraces self defense.  It allows us to fight back when we’re attacked.  Simple.

However, the soft-spoken pacifists out there (who are INCREDIBLY hard to spot at jury selection) are downright offended by the “Acting on Appearances” instruction.  Many juries simply cannot promote violence beyond the context of self defense.  Yet even a pacifist will fight to save their own life.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Engel: WA Supreme Court Reversed Overly Broad Burglary Conviction

Burglary, Constitutional Rights, Due Process, felony, Jury Trial, Property Crimes, United States Supreme Court, Washington Court of Appeals, , ,

118 Fence Ideas and Designs - Different Types With Images

In State v. Engel, the WA Supreme Court ruled that a man suspected of stealing aluminum auto wheels from a rural business wasn’t guilty of committing Burglary in the Second Degree — an extremely serious felony — because the property wasn’t fenced on all sides.

Roger Engel was convicted of second-degree burglary after stealing some wheels from a large private yard that was partially enclosed by a fence and partially bordered by sloping terrain. Burglary in the second degree requires entering or remaining in a “building.” RCW 9A.52.030. A “building” is defined to include a “fenced area.” RCW 9A.04.110(5). Engel challenged his conviction, claiming the yard was not a “fenced area” under the statute.

The business premises Engel entered covered seven or eight acres and included several buildings and a large yard. The entrance to the property was gated. One-third of the property, including the side fronting the road, was fenced by chain link fence with barbed wire on the top.

However, the rest of the property was not fenced, including the edge of the property near the stock piles. Beyond the gravel piles was is a “pretty sizeable drop-off, a hill that goes down.” Two-thirds of the property was encased by ‘banks, high banks, [and] sloping banks.” Directly adjacent to the property was a separate business, but no fence or gate separated the two properties.

The Supreme Court agreed with Engel’s argument, with Justice James Johnson writing the unanimous opinion. “Upholding an overly broad definition of ‘fenced area’ would extend criminal liability beyond what is warranted by the plain language of the statute, as understood in the context of the common law.

Therefore, the Court of Appeals decision affirming Engel’s conviction is reversed and the case is remanded with instructions to vacate the conviction and dismiss the charge.”

My opinion?  I wholeheartedly agree with the WA Supremes for two reasons.  First, under the state’s interpretation of “Burglary,” would-be petty criminals who trespass might be liable for burglary even if the property line at their point of entry were unfenced and unmarked, even if they remained on the property without approaching any buildings or structures, and even if the property were such that they could enter and remain without being aware that it was fenced.  These kinds of examples are well outside the category of offenses the legislature intended to punish as burglary.

Second, Burglary is a serious crime with serious consequences. An arrest and conviction for a residential burglary, or any other property crime, can be a life-changing event that may result in penalties such as mandatory state prison time. Residential burglaries have reached epidemic proportions in many communities and courts are routinely handing out stiff penalties, even to first time offenders.

Again, good opinion.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Hinshaw: Absent Exigent Circumstances, Cops Can’t Enter Your Home Without a Warrant & Arrest for DUI

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Great opinion.

In State v. Hinshaw, the WA Court of Appeals held that absent Exigent Circumstances, police cannot enter a home without a warrant & arrest for DUI.

Here, the Moses Lake Police investigated reports of a car unlawfully driving on a bike path.  Police search the path.  They find Mr. Hinshaw on a bike close to the path.  He said he was a passenger in the suspect car, but denies driving.  They release him.

Later, the police find the suspect car in his driveway.  It had a flat tire.  They knock on the door.  He answers the door, yet refuses to come out.  He admits to drinking earlier.  Officers grab his arm, go inside of his home, and arrest him for DUI.  They are concerned his BAC level was dissipating.

The Court of Appeals rejected the State’s argument that “exigent circumstances” justified Mr. Hinshaw’s warrantless seizure.  The Court saw several errors in the police officer’s conduct.   First, the officers failed to establish how quickly the BAC would/could dissipate.  Second, the officers could not estimate how long it would take to get a warrant.

Third, although the police had probable cause to believe Mr. Hinshaw became intoxicated and drove home, the reckless operation of the car and consequent threat to public safety had ended.  Mr. Hinshaw was neither armed nor dangerous.  He posed no threat to the public or officers.  His car was disabled.  Consequently, exigent circumstances did not exist.

My opinion?  Great opinion!  The Court of Appeals saw through the State’s smoke and mirrors.  This was not a case about exigent circumstances.  An emergency never existed!  No, this was a bona-fide; unlawful exercise of “arrest first, ask questions later” on the part of the police.  Clearly unlawful.  Kudos to the Court of Appeals.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

 

State v. Carneh: Why Defense Attorneys Should Seek Dismissals WITH Prejudice

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Dismissed with Prejudice – The Civilian

In State v. Carneh, the WA Court of Appeals decided the Prosecution could refile charges on a defendant after previously dismissing the case without prejudice. 

Typically, prosecutors dismiss cases in one of two ways: with prejudice, or without prejudice.   Dismissing a case with prejudice means prosecutors cannot refile future charges against the defendant.  However, dismissing  without prejudice means the prosecutor may, in the future, refile charges at time if (1) statute of limitations has not expired, (2) jurisdiction still exists, and (3) prosecutors develop substantial probable cause to refile. 

In this case, the State charged Carneh with four counts of aggravated murder in March 2001.  After extensive and periodically successful competency restoration treatment, the trial court ultimately dismissed the case without prejudice because it found Carneh was incompetent to stand trial at that time.  The State refiled charges after learning that Carneh had shown signs of improvement.  The trial court ordered further competency restoration.

RCW 10.77.086 provides that if competency restoration efforts are ultimately unsuccessful, “the charges shall be dismissed without prejudice, and either civil commitment proceedings shall be instituted or the court shall order the release of the defendant.”  After a trial court dismisses charges without prejudice pursuant to this statute, it loses the criminal jurisdiction and with it the authority to order competency evaluation or restoration.  But the statute reserves the prosecutor’s ability to refile charges and makes clear that the bar against trying incompetent defendants lasts only so long as such incapacity continues.

The prosecutor’s ability to refile is not unfettered; rather, the prosecutor must have a good faith basis to believe that competency has or will likely be restored.  In this case, the prosecutor received a letter from Western State Hospital indicating that Carneh’s condition had improved.  The letter was sufficient good faith basis to refile.  The trial court thereby reacquired criminal jurisdiction and with it the authority to order further competency restoration.  Ouch!!

My opinion?  Division II made a painfully reasonable  decision.  Competent defense attorneys should know that prosecutors may refile charges at any time if a case is dismissed without prejudice.  The remedy?  Whenever possible, defense attorneys should seek dismissals with prejudice. 

True, our knee-jerk reaction is, quite simply, to take a dismissal in any form or fashion.  We’re grateful to get them for our clients, and nobody wants to look a gift horse in the mouth.   Still, a dismissal without prejudice obviously comes with strings attached.  Indeed, worst-case scenario like State v. Carneh could arise. 

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.