Opinion dated October 28, 2011, to be published.
The issue in this case was whether a circuit court may convert a “dismissal of a criminal indictment without prejudice” to a “dismissal with prejudice” nine years after entry of the original dismissal.
The COA held that, based on Commonwealth v. Sowell, 157 S.W.3d 616 (Ky. 2005), a trial court loses jurisdiction after 10 days, so it cannot convert the dismissal. Mr. Smith was indicted in October 2000 for Trafficking 1st, Tampering with Physical Evidence, and Possession of Drug Paraphernalia. Evidence against Mr. Smith was suppressed after a suppression hearing. Accordingly, the Commonwealth filed a motion to dismiss the indictment without prejudice.
After more than nine years without any further prosecution on this case, Mr. Smith filed a motion in circuit court to expunge the indictment or dismiss the indictment with prejudice. The trial court granted the motion to dismiss with prejudice. The Commonwealth on appeal argued, and the Court of Appeals agreed, that the trial court lost jurisdiction to alter the order of dismissal ten days after its entry.
The Court of Appeals does offer some possible solutions for trial counsel. First, a defendant can apply to segregate his records held by any public agency and removed from the public record. Second, and probably the better solution, would be for trial counsel to ask the trial court to exercise its narrow but inherent power of expungement for the purpose of correcting constitutional infractions. See Commonwealth v. Holloway, 225 S.W.3d 404 (Ky. App. 2007) (court has the right to grant expungements which are not otherwise authorized by KRS 431.076 under “its inherent powers to expunge a record in instances of extraordinary circumstances, such as illegal prosecutions, arrests under unconstitutional statutes, or where necessary to vindicate constitutional or statutory rights.”).
Contributed by Robert Yang