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Judge: Failure to notify defendant of new charges is a ground for dismissal
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Posted on May 09 2008
A government’s failure to provide notice to a defendant of the amended charges is ground for dismissal of the charges, according to Superior Court associate judge Juan T. Lizama.
He said a verbal notice of an intent to amend charges is not sufficient to provide the defendant with notice.
“If the Commonwealth wishes to amend and prosecute additional charges then it must provide sufficient notice to defendant beforehand,” said the judge in his order issued Tuesday involving a traffic case.
In that order Lizama dismissed the charge of driving without a license filed against Steven M. Tammy.
At trial court, he said, the government may only pursue the charges of operating a vehicle without a license in the immediate possession and operating a vehicle without a seatbelt.
“The court is troubled that the Commonwealth would file notice to add charges to a complaint and neglect to provide the defendant with notice of the additional charges that will be brought against him,” Lizama emphasized.
According to court records, Tammy was pulled over on Christmas Day in 2007. He was charged with driving a vehicle without a license and operating a vehicle without a seatbelt.
Tammy was ordered to appear in court on Jan. 31, 2008. At the time, he was only charged with driving a vehicle without a license. On Feb. 1, 2008 and without notice to Tammy, the government added a new charge of driving without a seatbelt.
Lizama granted this motion on Feb. 4, 2008 without a hearing. Finally on Feb. 11, 2008 the government served Tammy with a copy of their motion to amend citation to add charges.
Tammy, through counsel assistant public defender Douglas Hartig, filed a motion to dismiss this charge. The government filed an opposition to the motion to dismiss.
Hartig alleged that the government also filed a proposed order on Tammy’s motion to dismiss without notice to the defendant.
This order was signed by a different judge (not Lizama) and set the motion hearing for April 9, 2008 instead of March 31. On March 31, 2008, the motion to dismiss was argued before Lizama.
Lizama dismissed the government’s charge of operating without a license. He also denied government’s motion to reconsider the court’s dismissal of the charge.
