Rule 48. Dismissal

(a) By the Attorney for the State. The attorney for the State may file a written dismissal of an indictment, information, or complaint or any count of an indictment, information, or complaint, setting forth the reasons for the dismissal, and the prosecution relating to that dismissal shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.

(b) By the Court.

(1) If there is unnecessary delay in bringing a defendant to trial, the court may upon motion of the defendant or on the court's own motion dismiss the indictment, information, or complaint. The court shall direct whether the dismissal is with or without prejudice.

(2) If no indictment has been returned by the grand jury within 6 months after the initial appearance of the defendant or after the 3rd regularly scheduled session of the grand jury after the initial appearance, whichever occurs first, the court shall dismiss the complaint, unless within the time period specified in this paragraph the attorney for the State moves to enlarge the period and shows the court good cause why the complaint should remain on the docket. The dismissal pursuant to this paragraph shall be without prejudice.

Committee Notes

Advisory Note – June 2016 Subdivision (b)(2), which was added to Rule 48 in 2005, provided for the automatic dismissal of criminal complaints by clerks. As the practice evolved, courts, rather than clerks, have issued the orders of dismissal without prejudice. The amendment to Rule 48(b)(2) recognizes the actual practice and also places responsibility for the dismissal of a criminal charge under the Rule with a judicial officer. In addition, the word "after" has been substituted for the word "of" to clarify that the time period in question begins to runs after the initial appearance.

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 48 of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subdivisions (a) and (b)(2) 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, the words "of the Unified Criminal Docket" are added after the word "clerk" to enhance clarity.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1980 [M.R. Crim. 48(a).] Rule 48(a) is amended to reflect the policy judgment that dismissal, as well as initiation, of prosecution is a matter within prosecutorial discretion and should not require court approval.

Advisory Committee Note—1983 [M.R. Crim. P. 48(b).] The amendment codifies the suggestion made in State v. Wells , 443 A.2d 60, 64 (Me. 1982) that the court "should take care to enter an order of dismissal under Rule 48(b) which makes clear whether the order is intended as a final termination of all prosecution on that charge."

Advisory Committee Note—1991 [M.R. Crim. P. 48(c).] This rule formalizes the alternative of filing a charge for a definite period of time instead of going forward with it in the usual course. Court approval is unnecessary unless the attorney for the state seeks assessment of costs. The written consent of the defendant to the filing is required to avoid the later assertion of the defendant's right to a speedy trial in the event the pleading is ultimately brought forward by the attorney for the state for action. In general, a filing will be used by an attorney for the state as an alternative to dispose of a case in which a conviction may not be an appropriate or attainable disposition. On occasion conditions will be imposed on the defendant as part of the agreement to file the case. In those cases it would be in the interest of all parties to put those conditions in writing. Most cases will not be brought forward by the attorney for the state after filing. However, that option is available to the attorney for the state during the period of filing. If the attorney for the state does not act during the period of filing, a dismissal of the charge without prejudice will be entered by the clerk of court.

Advisory Committee Notes—2001 [M.R. Crim. P. 48(c).] This amendment is intended to resolve the issue whether the assessment of costs for a filing must reflect actual court costs. See State v. Fixaris , 327 A.2d 850, 853 n.2 (Me. 1974). Under this amendment, only assessment of costs in excess of $500 will require that a court make a finding that the monetary figure proposed reflects actual costs. Proposed assessed costs of a lesser amount will not necessitate this finding, nor does that monetary figure necessarily reflect actual court costs.

Advisory Committee Note – March 2005 [ M.R. Crim. P. 48(b).] The amendment removes the reference to bindover proceeding. See also Advisory Committee Note to M.R. Crim. P. 3(a) and (b).

Advisory Committee Note – June 2005 [M.R. Crim. P. 48(b).] Rule 48(b), as revised by the order of March 24, 2005, is further amended in several respects. First, the rule is divided into two sections. Subparagraph (1) of the revised rule is identical to the provision of the current rule relating to unnecessary delay in bringing a matter to trial in either the District Court or the Superior Court. Where such unnecessary delay is identified, the court may, upon motion of a defendant, dismiss an indictment, information or complaint. Where the court undertakes such a dismissal, the court is to direct whether the dismissal is with or without prejudice. Subparagraph (2) of the revised rule provides that if no indictment is found by the grand jury within six months of the filing of the complaint or after the 3rd regularly scheduled session of the grand jury after the filing of the complaint, whichever occurs first, the clerk shall dismiss the complaint unless the attorney for the state shows the court good cause why the complaint should remain on the docket. Any dismissal pursuant to subparagraph (2) is without prejudice. The entry of a dismissal by the clerk pursuant to subparagraph (2) will be automatic. Neither party will receive advance notice of the dismissal. It will be the responsibility of the attorney for the state to keep track of cases that have commenced and either assure timely presentation to the grand jury or, if there exists good reason to retain the case on the docket beyond the time constraints specified in the subparagraph, to bring a timely motion and demonstrate to the court good cause why the case should remain on the docket. This amendment establishes a time certain within which action shall be required by the grand jury. It is part of a process to develop certain times for actions to occur in the Superior Court once a prosecution has commenced. It remains the better practice, notwithstanding the time periods specified in subparagraph (2) within which to indict after the filing of a complaint, that the attorney for the state present the case of an incarcerated defendant to the next regularly scheduled session of the grand jury after the filing of a complaint, if practicable.

Advisory Note – 2007 M.R.Crim.P. 48(b)(2). The amendment replaces the current "filing of a complaint" with the date of the "initial appearance of the defendant" as the 6month triggering mechanism. The filing of a complaint can predate the initial appearance by many weeks. The parties generally do not engage in meaningful case resolution discussions until the initial appearance, regardless of when the complaint is filed. The amendment seeks to ensure that the parties have opportunity for discussion during the entire 6-month period.

Advisory Note – 2009 M.R.Crim.P. 48(c). Subdivision (c) of Rule 48 is abrogated. See

Advisory Note to M.R.Crim.P. 11B.

Advisory Note – March 2010 M.R. Crim. P. 48(b) heading, (1) and (2). The amendment modifies subdivision (b) in three respects. First, the heading is changed from "By Court" to "By the Court." Second, paragraph (1) of subdivision (b) is expanded to allow a trial court on its own motion to dismiss a charging instrument "[i]f there is unnecessary delay in bringing a defendant to trial." Prior to this change, paragraph (1) permitted a dismissal only upon motion of the defendant. Paragraph (1) is designed to be the mechanism to enforce a defendant's speedy trial right as provided by Me. Const. art. I, § 6 and U.S. Const., amend. VI and XIV. State v. Caulk, 543 A.2d 1366, 1369-70 (Me. 1988). Third, paragraph (2) of subdivision (b) is amended to clarify that to avoid dismissal of the complaint by the clerk, the attorney for the state must, prior to the expiration of the time period specified in paragraph (2), both move to enlarge the period and show the trial court good cause why the complaint should remain on the docket.