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If the state doesn't attend a pretrial conf when scheduled, can I motion for the judge to dismiss?

Phoenix, AZ |

I had a justice court criminal case pre trial conference calendared for 10:15am PST, I was allowed to telephonically appear. I called 8 minutes early. The court clerk conferenced me over to the state's office. The assistant said the attorney was busy with another defendant and that I would be called before they leave for lunch or upon completion of their morning work load. I verified that they had the case file already but they admitted it was pulled sameday and no one had looked at it. By the way this is a AZ rule 32 postconviction relief retrial. After submitting my evidence and petition to the presiding judge in person he allowed me to withdraw a previous guilty plea from 2012 for a misdemeanor assault charge I was threatened/forced to take at trial june 21 2012. if i dont hear back???

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Attorney answers 3


A defendant may motion to dismiss even if the prosecutor is in court. There is no rule that says you may nor motion to dismiss if the prosecutor is not in court.



I am in agreement. I am just reading my order the judge gave me and it clearly states that if I were to miss it then I could suffer a default in favor of the other party which is from what I have learned over the years the same for any case. hence be at your hearing at all stages!!


You can make the motion. Whether it'll be granted is a whole other issue. If I am understanding the way your facts are worded, it appears that you got the relief you needed already from the judge. I would recommend allowing an attorney in your area to handle this. It is NEVER a good idea to do something that requires a specialized degree without it. Even if you have the right to do so.



I understand your recommendation. i have declined even court provided counsel. i have been studying post conviction relief since I was forced to take the plea change agreement. My reasons are simple and I am simply sharing with everyone whom may end up in a legal soup sandwich like I manged to stroll unknowingly into the day I was falsely arrested. My reason is that I hired a great guy to rep me last year. he got the judge to dismiss at trial but that is when all heck broke lose. The prosecution attor, arresting sgt., arresting detective literally ran to the bench yelling to the judge about what a dangerous this and druggy that I was. My lawyer turned to me and said quote "Matt I have never seen this before". I found myself outside the court room on a bench shaking in panic when my lawyer (after conferring with the prosecution) tellingme I can leave now free but not with prejudice and the officers said they would get the original charges re-filed and personally (yes they said this) would come to my new job and arrest me. I already lost my job because of the arrest months prior. i actually got a 40k raise at my new gig. So i caved in to protect my children. So anyways I purposely violated my probation and waited for the warrant, an order to show cause hearing was issued which I was waiting for but missed it due to me never getting notice. So a second warrant came. I went to the judge personally and showed him imperial evidence showing beyond a doubt I was innocent. He quashed the warrant, accepted my petition and granted me the chance to withdraw my guilty plea, but he said he couldn't dismiss it. He verbally stated to me as I thanked him "Whatever you do make sure you call in to the next hearing" or i will have no choice but to order your arrest and deny your post conviction relief. From what I gathered fromreadings and consults the past 12 months is that the state would more than likely not show or attend this hearing which would then allow the judge to dismiss with prejudice. I understood it as a procedural matter and my judge was at one point over saw judge misconduct and fair proceedings. He wasn't the Judge at my june 21 2012 trial either. Again I am only putting up all this for others to gleam from hopefully. Thank you all for your comments and input. Regards!


You can certainly file a motion to dismiss with the court, and the state will have a chance to respond and you'll get a hearing on that, possibly at the same time as your trial. You may also want to research Rule 8 if you intend on going forward without an attorney. Since you got your PCR granted, you can't be doing too bad so far, eh?

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You have no idea how crazy this how thing has been. I was thinking of faxing the plaintiff a letter by COB today suggesting they file a dismissal of their complaint. I honestly can not see why this should even go past them looking at my newly submitted evidence. Honestly it will be a waste of money/time/energy/calendar room as well to end up with me getting off again. Yes I was dismissed, the judge uttered the words. Word to the kids out there... if you are innocent, get dismissed, dont let the crybaby arresting officers and prosecuting attorney scare you into giving up your job, family, life, dignity, respect, health, money, career and sanity. Walk out and smile like I should have. Anyways sorry just venting.

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