A Continuance by Any Other Name: Kansas Court of Appeals Finds that Trial, not Dismissal with Prejudice, is Appropriate Remedy for State’s Abuse of Process

State v. Peterson, No. 125,504 (Kan. App. Dec. 29, 2023)

Joshua Lollar, Staff Editor

Issue: Did the district court abuse its discretion when it dismissed the State’s case with prejudice to sanction the prosecutor for abuse of process?

Answer: Yes.  The district court abused its discretion because (1) there was no showing of actual prejudice to the defendant, and (2) a milder remedy was available.

Facts: Erik Peterson was scheduled for trial in January of 2022.  Two weeks before trial, the State moved for a continuance, citing an increase in COVID cases.  The district court denied the motion.  Four days later, the State moved to dismiss the case without prejudice because of the “unavailability of material witnesses.”  Peterson moved to dismiss with prejudice, arguing the State failed to timely prosecute.  The district court found the State abused process by trying to circumvent the denial of continuance and noted two other cases where the State had attempted the same procedural maneuver.  The district court dismissed the case with prejudice, reasoning that (1) prejudice to Peterson would occur if the State were allowed to dismiss and refile, and (2) no other remedy was available.  The State appealed.

Discussion: Upon review for abuse of discretion, the Court of Appeals reversed and remanded, finding the district court abused its discretion in dismissing the case with prejudice.  If a defendant has not suffered actual prejudice because of a prosecutor’s misconduct and there are other remedies for the misconduct, dismissal with prejudice may be an abuse of discretion. 

Following the Kansas Supreme Court’s analysis in State v. Mulleneaux, the Court of Appeals agreed that the State was trying to circumvent the denial of continuance by seeking dismissal without prejudice, which would effectively continue the case by another means.  This amounted to prosecutorial misconduct.  But the court clarified that no actual prejudice to the defendant would result if the State were to dismiss and refile.  All prejudice to the defendant in a potential trial or changes to his criminal history was hypothetical, not actual, and only actual prejudice to a defendant justifies dismissal with prejudice.  Furthermore, the district court could have limited the State’s abuse of process by denying the motion to dismiss and allowing the case to go to trial. 

In Mulleneaux, the Court affirmed an erroneous dismissal with prejudice as “harmless error” because the suppression of certain evidence prevented the State from proceeding to trial, and there was no way for the evidence ever to be admitted.  Here, the error was not “harmless” because denial of the State’s motion to dismiss would have left the State time to serve its witnesses and prepare for trial.  Therefore, the court reversed and remanded for abuse of discretion.

Key Authorities: State v. Mulleneaux, 512 P.3d 1147 (Kan. 2022) (finding dismissal with prejudice is often “inappropriate” and should only be considered after a judge weighs alternatives); State v. Bolen, 13 P.3d 1270 (Kan. 2000) (finding dismissal with prejudice may be abuse of discretion when defendant has not suffered actual prejudice due to prosecutorial misconduct and when there are alternative remedies); State v. Clovis, 807 P.2d 127 (Kan. 1991) (finding dismissal with prejudice was not an abuse of discretion to sanction State’s pattern of misconduct).

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