R.I. Super. Ct. R. Crim. P. 48

As amended through June 7, 2024

Rule 48 - Dismissal

(a)By Attorney for State. The attorney for the State may file a dismissal of an indictment, information, or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.

(b)By the Court. The court, upon a finding that a defendant has successfully completed the diversion program, may dismiss the charge(s) then pending against the defendant.

Amended by Order dated June 22, 2017, effective 9/5/2017; amended by Order dated December 17, 2019, effective 12/17/2019.

1972 Notes

This rule differs from its federal counterpart by permitting the attorney for the state to file a dismissal (the equivalent of a nolle prosequi) without approval of the court. The purpose of requiring leave of court under the federal rule apparently is to deter the prosecution from harassing a defendant by charging and dismissing without placing a defendant in jeopardy and then charging again. 3 Wright, Federal Practice and Procedure, p. 305 (1969). In Rhode Island, however, "the power of and responsibility for the entry of a nolle prosequi is by the Constitution (Art. VII s. 12) exclusively in the attorney general and his assistants...." Ex parte McGrane, 47 R.I. 106, 107, 130 A. 804 (1925). See also Rogers v. Hill, 22 R.I. 496, 499, 48 A. 670, 671 (1901). Thus, it would appear that the exercise of this authority by the attorney for the State cannot be made subject to the court's approval.

A dismissal may be taken by the prosecution as to less than all defendants named or all charges stated in an indictment or complaint. See State v. Edwards, 89 R.I. 378, 389-90, 153 A.2d 153, 160-61(1959); Ex parte McGrane, 47 R.I. 106, 107, 130 A. 804 (1925).

Under the rule a dismissal may not be taken by the State after the trial has begun without the defendant's consent. In the federal courts the defendant has the right to insist, once the trial commences, "on a disposition on the merits and may properly object to the entry of a nolle prosequi." Advisory Comm. Notes, 4 F.R.D. 405, 435 (1946). It is unclear whether a similar right has been recognized in Rhode Island. Cf. Rogers v. Hill, 22 R.I. 496, 498, 48 A. 670, 671 (1901). In any event, a dismissal without the defendant's consent once the trial has begun places him in jeopardy under the Fifth Amendment and thus is a bar to further proceedings on the same charge. See United States v. Chase, 372 F.2d 453, 464 (4th Cir.) cert. den., 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967); Woodring v. United States, 311 F.2d 417, 423-24 (8th Cir.), cert. den., 373 U.S. 913, 83 S.Ct. 1304, 10 L.Ed.2d 414 (1963). The double jeopardy protection of the Fifth Amendment is now fully applicable under the Fourteenth Amendment to state prosecutions. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

Subdivision (b) differs from the federal rule by authorizing dismissal of an indictment or complaint only where there is unnecessary delay in bringing a defendant to trial. It does not provide for dismissal where there is delay in presenting the charge to a grand jury. This latter type of delay is deemed to be more appropriately dealt with by statutes of limitation. The rule as drafted is intended to implement a defendant's right to a speedy trial. R.I.Const.Art. 1, § 10. This right is partially reflected in G.L. 1956 (1969 Reenactment), § 12-13-7 which requires that persons charged with serious crimes be tried within six months or be released on bail.