If a case is dismissed with prejudice in municipal court and the defendant is later charged with the same crime in superior court, what would the defendant argue in their motion for dismissal if they fall under the following case?:
State v. George, 160 Wn.2d 727 (2007).
It is to my knowledge that the recharging in Superior Court of a Municipal Court case which was dismissed with prejudice is not legal. This normally would fall under the double jeopardy clause. I am told, however that the double jeopardy argument under the current status of the law is not valid. What would the argument then be? Is there anything I should know about State v. George that is confusing to where double jeopardy can in fact still be used?
You indicate the Municipal Court case was dismissed with prejudice. A "with prejudice" dismissal cannot be refiled if it is the same crime. A prosecutor's dismissal, however, is generally a dismissal without prejudice, which can be refiled. Depending on what crime you have been charged with in Superior Court vs. the crime in Municipal Court, you may have a valid legal argument. Consult an attorney.
The general principle is stated correctly, however, in order to determine whether the Double Jeopardy Doctrine attaches to your case you have to discuss it with the counsel of record in confidence who was representing you in that criminal proceedings. There may be nuances that could have changed the elements of the crime .
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You need to talk to a lawyer. Constitutionally speaking, the dismissal of a municipal violation will not prevent the state from seeking to prosecute. Washington law may prevent it, however.
Even if it does, it is still probably worth your time to at least schedule a consultation with an attorney. Nobody on here is going to be able to take what you've written, look at that case, and tell you exactly what/how to argue. The system is a little more involved than that and any lawyer is going to want more details (and, perhaps, to look at the "official" record of the municipal case).
Talking to a local lawyer would be of great help to you.
Jeopardy most probably did not attach in this limited fact pattern. If a crime is dismissed without prejudice, it can be refiled. If the Prosecuting Authority investigated the case and found additional facts sufficient for a felony charge, they could refile the case as a felony under the prosecutorial standards. I agree with two prior counsel in so far as you need to retain an Attorney to protect and defend your rights. Good Luck !
Answers to questions are for general purposes only and do not establish an attorney-client relationship.The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not permit confidential communication.
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