STATE v. HERRING, 209 Conn. 52 (1988)

547 A.2d 6

(13271)Supreme Court of Connecticut

PETERS, C.J., HEALEY, CALLAHAN, GLASS and COVELLO, Js.

The defendant, who had been charged with the crimes of assault in the third degree, threatening and harassment appealed after the trial court, over his objection, allowed nolles prosequi to enter as to those charges and summarily denied the motions to dismiss that he had based on the statute (54-56b) concerning objections to the entry of nolles prosequi. That statute provides that a nolle may not enter where an accused objects and demands a trial or dismissal, except where the state represents to the trial court that a material witness has died, disappeared or become disabled or that material evidence has disappeared or been destroyed and that further investigation is necessary. Held; 1. Although a nolle prosequi is not a final judgment, the entry of the nolles fell within the exception to the rule of finality that allows an intermediate appeal of an interlocutory trial court ruling that, if erroneous, cannot later be remedied by reversal of a conviction after trial. The trial court erred in allowing the nolles to enter without requiring the state to make the representations required by 54-56b.

Argued April 6, 1988

Decision released September 6, 1988

Informations charging the defendant with the crimes of assault in the third degree, threatening and harassment, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford, where the court, Byrne, J., allowed nolles prosequi to enter and denied the defendant’s motions to dismiss, and the defendant appealed. Error; further proceedings.

Jon L. Schoenhorn, for the appellant (defendant).

James G. Clark, assistant state’s attorney, with whom, on the brief, were Michael E. O’Hare and Herbert Appleton, assistant state’s attorneys, for the appellee (state).

CALLAHAN, J.

On September 24, 1985, the defendant, Perry Lee Herring, was charged in two separate informations; in one, with assault in the third degree

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in violation of General Statutes 53a-61,[1] and in the other, with threatening and harassment in violation of General Statutes 53a-62[2] and 53a-183[3] respectively. On July 1, 1987, in open court, the state attempted to enter nolles prosequi as to all the charges in both informations. The ostensible reason for the entry of the nolles, as stated by the assistant state’s attorney, was that the accused had received a sentence of fifty years to life the previous day in Hartford Superior Court and was also scheduled to be returned to New Jersey to finish an eighteen year term of imprisonment in that state.

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Apparently the state felt that to persist in the prosecution of these pending misdemeanors would be akin to carrying coals to Newcastle.[4]

When the state indicated that it intended to enter nolles, the defendant objected and moved that the charges against him be dismissed pursuant to General Statutes 54-56b[5] and Practice Book 726.[6] The trial court, however, allowed the nolles to enter and summarily denied the defendant’s motions to dismiss. The assistant state’s attorney did not make, or attempt to make, any representations that a material state’s witness had died, disappeared or become disabled, or that material evidence had disappeared or been destroyed, and that a further investigation was therefore necessary. See General Statutes 54-56b. From the transcript, however, it appears that he was afforded no opportunity to do so by the trial court and the defendant was similarly not afforded an opportunity to respond. Such representations were essential before nolles could enter to the pending charges against the defendant over his objection. State v. Lloyd, 185 Conn. 199,

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202, 440 A.2d 867 (1981). Without those representations, the trial court’s allowance of the entry of the nolles was plain error. State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981); State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93
(1980); see also LaReau v. Reincke, 158 Conn. 486, 492-93, 264 A.2d 576 (1969).

The question that confronts this court is whether we have jurisdiction to address the trial court’s error. Generally, a party aggrieved by a decision of the trial court may appeal only from a final judgment. General Statutes 52-263[7] and 51-197a;[8] Practice Book 4000;[9] State v. Coleman, 202 Conn. 86, 89, 519 A.2d 1201 (1987); State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). The final judgment in a criminal case ordinarily is the imposition of sentence. In re Juvenile Appeal

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(85-AB), 195 Conn. 303, 306, 488 A.2d 778 (1985); State v. Parker, 194 Conn. 650, 652, 485 A.2d 139
(1984). A nolle prosequi is obviously not a final judgment and generally an appeal would not lie solely from the entry of a nolle prosequi. State v. Lloyd, supra, 207. Consequently, we must decide if this case falls within that narrow exception to the rule of finality that allows an intermediate appeal of interlocutory trial court rulings that, if erroneous, cannot later be remedied by reversal of a conviction after trial. Id.; State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). We conclude that the entry of nolles to the charges against the defendant under the factual circumstances evident here fits within that exception and warrants the exercise of our judicial oversight. State v. Lloyd, supra.

If the trial court had adhered to the dictates of 54-56b, the defendant, when he objected to the attempt of the state to enter nolles, would have been entitled to either a trial or a dismissal unless the state made the requisite representations that would have allowed nolles to enter. Id., 202. Instead, the trial court allowed nolles to enter as to the charges against the defendant without affording him an opportunity to present arguments in opposition thereto or giving the state the opportunity to make the necessary representations justifying their entry. If the present state of affairs is acquiesced in by this court the statutory right of the defendant to have the charges against him disposed of in accordance with the legislative mandate of 54-56b will never be accommodated. Further, the failure to address the trial court’s error could lead to an indefinite postponement of the criminal proceedings against the defendant that may, under the circumstances, violate his constitutional right to a speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 219-22, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); State v. Lloyd, supra, 208. The defendant’s statutory and constitutional rights

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cannot be vindicated by a trial or other proceeding that, in all likelihood, will never take place unless an interlocutory appeal is permitted. State v. Lloyd, supra.

Therefore, this defendant is in much the same position as the defendant in State v. Lloyd, supra, 207, wherein we stated: “The purpose of providing judicial oversight over the entry of a nolle prosequi to which the defendant timely objected is to protect the defendant from the repeated initiation and termination of charges that, while discharging him from custody, leave him in legal limbo.” This defendant too, finds himself in that vacuous place of oblivion.

Since the effect of the entry of the nolles was only to terminate this particular prosecution without an acquittal and without placing the defendant in jeopardy, he remains vulnerable to reinstatement of a prosecution against him. State v. Gaston, 198 Conn. 435, 440-41, 503 A.2d 594
(1986); State v. Lloyd, supra, 201; Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 5, 273 A.2d 709 (1970), cert. denied, 401 U.S. 938, 91 S.Ct. 931, 28 L.Ed.2d 218 (1971). Even if the statute of limitations as to these misdemeanors[10] were to expire and the erasure statute[11] become

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operative to deprive the state of access to records concerning these charges so as to render reinitiation of prosecution difficult and improbable, reinitiation of prosecution is not impossible. The statute of limitations is an affirmative defense, not a jurisdictional bar to prosecution; State v. Coleman, supra, 91; and the erasure statute does not foreclose the utilization of the personal and independent observation of witnesses to initiate a new prosecution. State v. Morowitz, 200 Conn. 440, 447-52, 512 A.2d 175 (1986); State v. Gaston, supra, 441; Hampton v. Manson, 5 Conn. App. 343, 346, 497 A.2d 1044 (1985); State v. Anonymous (1980-2), 36 Conn. Sup. 91, 92, 412 A.2d 708
(1979).

Consequently, the nolled charges, particularly in a prison setting, may threaten the defendant indefinitely. Further, his constitutional and statutory rights to have the charges appropriately resolved in a timely fashion will have vanished unless his interlocutory appeal is allowed. The case is properly here. State v. Lloyd, supra, 208. That being so, we find error and remand this matter to the trial court with instructions to allow the state the opportunity to make the requisite representations to allow the trial court to determine whether nolles should enter as to the charges in

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question. See id., 205. If the state is unable or unwilling to make the requisite representations, the defendant is entitled to a dismissal of the charges or an immediate trial.

There is error, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other justices concurred.