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Can I file a Motion to Dismiss ?
Anonymous4 views5 answers
I had a criminal case that was dismissed at a preliminary hearing last summer. The DA decided to refile the charges around November of last year. No new evidence or witnesses, just refiled, possibly to present his case differently. Well, originally my lawyer said he would file a motion for dismissal. Later he tells me we shouldn't or couldn't do it because the DA filed it as a "New Case". He's actually a public defender. So anyway. I say BS, but then again, I'm not a lawyer. What say you?
uzanne Marie FergusonCriminal Defense AttorneyTemecula, CA ·
Unfortunately, the DA has what we call "two bites at the apple" on a felony. I'm guessing the previous advice regarding a motion to dismiss was what the attorney was telling you he would do if the DA proceeded last time (after the charges were dismissed) by filing the information- he would have filed a 995 motion. But the good news is, if you beat the charges once and there is no new evidence, you should be able to beat them again. If you want someone to hand hold you through it, hire a local experienced attorney. They can get the info on the last case from the public defender and come at it from a new perspective with even more ammo. Call someone. Most offer a free consultation. But don't post anymore details online. dAs and cops can look here and on social media even if it is set to private.
I say listen to your lawyer. The DA routinely refiles cases. A "motion to dismiss" would be summarily, ah, dismissed. Beat the case again at prelim and it's over. They can only refile once.
This is common. The DA can refile the case as long as it is within the statute of limitations. The good news is that this is the only other time they can refile--if it is dismissed at prelim or at any other stage the case is dead. The public defender is correct.
