Opinion
No. 56924-4-I.
April 2, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-01390-1, Ronald L. Castleberry, J., entered September 6, 2005.
Affirmed by unpublished per curiam opinion.
The proper remedy for an insufficient information is dismissal of charges without prejudice. Because Ronald Quismundo never requested the appropriate remedy and was not entitled to the relief he did request, the trial court did not abuse its discretion by granting the State's motions to reopen its case in chief and to amend the information to add an essential element of the charge. We affirm.
FACTS
After Quismundo was convicted of violating a no-contact order in 2000 and 2004, a court entered another no-contact order barring him from having any contact with his wife, Kelly, for five years. Late one night in May 2005, Quismundo went to Kelly's apartment. Kelly testified that Quismundo came into her bedroom while she was asleep, woke her, yelled at her, and pushed her. Kelly also stated that she did not invite Quismundo to her home, nor did she desire to see him. Quismundo testified that he went to the apartment because Kelly told a friend that she was going to leave their three children alone in the apartment while she went out. He stated that he knew he was not supposed to go to Kelly's home, and that the no-contact order barred him from talking to, seeing, or going near Kelly. But, according to Quismundo, Kelly was not at the apartment while he was there, so he believed that he did not violate the no-contact order.
Quismundo was charged with felony violation of a no-contact order, effectuated by assaulting Kelly. On the first day of trial, the State amended the information with Quismundo's assent. The amended information based the charge on the fact that Quismundo had at least two prior convictions for violating a no-contact order and deleted the assault element, but also deleted the allegation that Quismundo violated the no-contact order. After the State rested, defense counsel moved for a dismissal with prejudice based on the fact that the amended information failed to allege the essential element of violating the no-contact order. The trial court denied the motion. The trial court then granted the State's motions to reopen its case in chief and to amend the information to include the omitted element. The jury convicted Quismundo. He appeals.
DISCUSSION
Quismundo contends that the trial court abused its discretion by denying his motion to dismiss the charge with prejudice and by allowing the State to reopen and amend the information after it had initially rested it case. "A charging document is constitutionally adequate only if all essential elements of a crime, statutory and nonstatutory, are included in the document so as to apprise the defendant of the charges against him and to allow him to prepare his defense." State v. Simon, 120 Wn.2d 196, 198, 840 P.2d 172 (1992).
A criminal charge may not be amended after the State has rested its case in chief unless the amendment is to a lesser degree of the same charge or a lesser included offense [and a]nything else is a violation of the defendant's article 1, section 22 right to demand the nature and cause of the accusation against him or her.
State v. Pelkey, 109 Wn.2d 484, 491, 745 P.2d 854 (1987). But "[t]he State has a right to refile a proper information." State v. Vangerpen, 125 Wn.2d 782, 793, 888 P.2d 1177 (1995). "The proper remedy for . . . a defective information is dismissal without prejudice to the State refiling the information." Simon, 120 Wn.2d at 199. Accord Vangerpen, 125 Wn.2d at 792-93.
In this case, the State conceded that the amended information omitted an essential element of the crime. However, in response to the defect in the information, the sole remedy sought by Quismundo was dismissal with prejudice. This was not an available remedy. The trial court properly denied the motion.
The prosecutor then proposed the options of 1) reopening and allowing the State to amend the information; 2) declaring a mistrial; or 3) proceeding with trial. Defense counsel correctly responded that, after it rests, the State may amend an information only to charge a lesser crime, but again asserted that the proper remedy was dismissal with prejudice. The trial court indicated that it would entertain a motion for dismissal without prejudice, but Quismundo never chose to make such a motion. Instead, he chose to proceed with trial. Given Quismundo's decision not to move for dismissal without prejudice, the sole remedy properly available to him, the trial court did not abuse its discretion by granting the State's motions to reopen its case in chief and to amend the information to correct the defect.
Affirmed.