Torrance Criminal Lawyer Discusses Exceptions to the 2 Dismissal Rule in Felony Cases

In California, the general rule is that the District Attorney can only refile a felony case once after the charges have been dismissed.  However, there are some exceptions.  For example, Penal Code §1387.1 provides a statutory exception to the two dismissal rule for defendants charged with violent felonies as defined in Pen C §667.5. If either of the first two dismissals were for excusable neglect, the prosecution may be permitted one additional opportunity to refile the charges. But no additional refiling is allowed if the conduct of the prosecution amounted to bad faith. Pen C §1387.1(a). Excusable neglect includes, but is not limited to, error on the part of the court, prosecution, law enforcement, or witnesses. Pen C §1387.1(b); see People v Massey (2000) 79 CA4th 204 (defining excusable neglect as neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances, e.g., prosecution’s failure to have witnesses in court on date set for trial after making reasonable efforts to secure their attendance); People v Mason (2006) 140 CA4th 1190, 1196–1197 (excusable neglect shown when victim witness was unavailable without knowledge of prosecutor and after numerous postponements where victim had been available, which gave prosecutor reason to believe victim would be available). For the violent felony exception to apply, the violent felony offense for which charges may be refiled must be one of the charged offenses previously dismissed. Otherwise, the prosecution could avoid the statutory consequence of two prior dismissals by overcharging an offense in a third filing. This is permitted under law by the ruling in People vs. Salcido (2008) 166 CA4th 1303, 1312–1313.  In cases where the prosecution intends to refile a felony charge, it is imperative to find an attorney who will aggressively challenge the efforts of the D.A.  It must be remembered that this only applies to felony criminal cases, misdemeanors are governed by different rules and laws, consult a Torrance Criminal Lawyer for help in these situations.

About thetorranceattorney

Matthew Ruff is a Torrance criminal defense attorney located near the 405 freeway on Crenshaw Blvd. Focusing on DUI and serious criminal cases for over twenty five years. In addition to criminal cases, Matthew also defends clients at the DMV regarding license suspension hearings stemming from drunk driving arrests.
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1 Response to Torrance Criminal Lawyer Discusses Exceptions to the 2 Dismissal Rule in Felony Cases

  1. Renata says:

    There are two aspects to this civil and craimnil. On the craimnil side, it’s a crime only if the State is able to prove that he did not intend to pay for the items. If he used the company card with the intent of paying the bill when it arrived, it’s not illegal although it’s a violation of company rules, I’m sure. These cases are seldom prosecuted simply because unless you missed these charges over a period of several months and he never paid them it’s hard to show intent.On the civil side, you can sue him. You’re entitled to your $1,900 plus costs. My personal opinion First, report him to the cops. The craimnil issue is entirely in their hands and the DA’s anyway. You don’t need a lawyer to do that.Second, demand your $1,900 back. If he doesn’t pay up, sue him in small claims court. You don’t need a lawyer to do that either. No point giving your lawyer $500 that you can’t add to your claim. In *some* States, but only a few, it’s legal to withhold a sum like this from his last paycheck. That is not true in most States, though and if you try it one where it’s not legal (Like my State of CA) it will cost you big time if he sues you.Third of course fire him.Richard

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