Rule 11B. Filing Agreements

(a) In General. The attorney for the State and the defendant may enter into a written filing agreement respecting a pending indictment, information, or complaint. The filing agreement must establish a definite filing period of up to one year subject to the conditions, if any, set forth in the filing agreement. Upon execution of the agreement by the parties, the State shall file the agreement forthwith in the court and, upon such filing, the agreement will become effective.

(b) Court Approval Unnecessary. The approval of the court for the filing of a written filing agreement by the parties is unnecessary; however, a filing agreement is subject to the control of the court. If the agreement calls for the payment by the defendant of costs of prosecution such agreed-upon costs may be in any amount up to, but not exceeding, the maximum authorized fine amount for the particular crime based upon its sentencing class and need not reflect the actual costs of prosecution.

(c) Disposition During or at Expiration of Filing Period. Except where a filing agreement expressly provides otherwise as specified in subdivision (d), if the defendant has satisfied each of the filing agreement's conditions, if any, at the conclusion of the agreed upon filing period the defendant is entitled to have the filed indictment, information, or complaint dismissed with prejudice. In this regard, unless the attorney for the State files a motion alleging a violation of one or more of the agreement's conditions by the defendant and seeking to have the criminal proceeding in which the indictment, information, or complaint was filed reactivated by the court, at the expiration of the filing period the clerk shall enter a dismissal of the filed charging instrument with prejudice. In the event the attorney for the State files a motion during or at the end of the filing period alleging a violation of one or more of the agreement's conditions, the attorney for the State is entitled to have the criminal proceeding reactivated by the court if, following a hearing on the motion, the court finds by a preponderance of the evidence that the defendant has violated one or more of the agreement's conditions.

(d) Special Reservations in the Filing Agreement. If the attorney for the State wishes to preserve the right to reinstate a criminal proceeding after the filing period has fully run when no breach of conditions has occurred, or to preserve the right to initiate the same or additional criminal charges against the defendant arising out of the same event or conduct in a separate criminal proceeding while the filing period is running, the attorney for the State must expressly reserve such a right in the written filing agreement and the defendant must expressly agree to it.

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 11B of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subdivisions (a) [first sentence], (c), and (d) the letter "s" in the word "state" is capitalized because the word is used in the term "attorney for the State." See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 3(d) and (f). Second, in subdivision (a) [third sentence] the letter "s" in the word "state" is capitalized because the word is referring to the "State" as a party.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Note – 2009 [M.R. Crim. P. 11B.] New Rule 11B comprehensively addresses filing agreements entered into by the attorney for the state and the defendant. It replaces current subdivision (c) of Rule 48. Unlike Rule 48(c) which focuses on a filing by the parties as a form of dismissal of a pending charging instrument, Rule 11B focuses on filing by the parties as a form of plea agreement in response to the Law Court's recent decision in State v. Russo , 2008 ME 31 942 A.2d 694. Russo thoroughly discusses party filings in this context. Proposed Rule 11B is made up of four subdivisions. Subdivision (a) authorizes the parties to enter into written filing agreements respecting a formal charge, with or without conditions (including a condition requiring payment of costs of prosecution), for a definite filing period of no more than one year. The one year limitation is consistent with current Rule 48(c). Subdivision (b) provides that approval of the trial court for the filing of a written filing agreement by the parties is unnecessary even in the context of agreed-upon payment of costs of prosecution. Thus subdivision (b) eliminates the current requirement of Rule 48(c) that costs of prosecution in excess of $500 require a court finding that the costs "reflect the actual costs of prosecution." It leaves to the parties to settle on an agreed-upon cost figure "in any amount up to, but not exceeding, the maximum authorized fine amount for the particular crime based upon its sentencing class and need not reflect the actual costs of prosecution." However, even though court approval is unnecessary for the filing of a written filing agreement by the parties, including, agreed-upon costs, subdivision (b) further provides that a filing agreement is always subject to the control of the court. Subdivision (c) provides, except with special reservations in the filing agreement, that at the conclusion of the agreed-upon filing period, if the defendant has satisfied each of the agreed-upon filing conditions, the defendant is entitled to have the filed charging instrument dismissed with prejudice rather than without prejudice as currently under Rule 48(c). The "with prejudice" consequence is consistent with the Russo decision. Id. It further provides that the attorney for the state may, during or at the end of the filing period, file a motion alleging a violation of one or more of the agreement's conditions by the defendant and seeking reactivation of the criminal proceeding. At the subsequent hearing on that motion, subdivision (c) provides that the attorney for the state is entitled to have the criminal proceeding reactivated by the trial court if the court finds by a preponderance of the evidence that the defendant has violated one or more of the agreement's conditions. Current Rule 48(c) does not address the role of the attorney for the state relative to reactivation other than to allude to "action [by the attorney for the state] to bring the indictment, information or complaint to the attention of the court during the period of filing." Subdivision (d) provides that if the attorney for the state wishes to preserve the right to reinitiate a criminal proceeding after the filing period has fully run when no breach of conditions has occurred, or to preserve the right to initiate the same or additional criminal charges against the defendant out of the same event or conduct in a separate criminal proceeding while the filing period is running, the attorney for the state must expressly reserve such a right in the written filing agreement and the defendant must expressly agree to it. These special reservations are not addressed in current Rule 48(c). They instead are addressed in the Russo decision. Id. ¶ 19, n.3, 942A.2d at 700.

Advisory Note – March 2010 [M.R. Crim. P. 11B(a).] The amendment adds a new final sentence that both imposes upon the state the obligation to file the written agreement forthwith once executed and signifies when the executed agreement becomes effective—that is, when it is filed by the state in the trial court and not before.