When the prosecution recalls a dismissed case

One of the more interesting hearings in 5th Circuit Court last week had to do with a case that was dropped and recalled twice to increase the charges by the Office of the Prosecuting Attorney.

The case involves three dismissals without prejudice. This is when a defendant is released from charges. The state is allowed to re-file a new case for the same crime within the limitations period. It also allows a plaintiff to re-file a new lawsuit in a civil case.

The alternative dismissal with prejudice is the court’s ruling against the merits of the case. It does not allow the prosecution or the plaintiff to file a new case based on the same complaint.

In this matter, the court looked at whether the prosecution was acting out of vindictiveness, or had acted appropriately in re-setting the case based on the evidence. The defense alleged that three arrests for the same crime was excessive and that the second dismissal cast doubt on the charge as a felony.

Jonie Briana Keleikaumaka Ragasa, 21, of Lihu‘e , was arrested on April 2, 2011, for third-degree criminal property damage. The misdemeanor case wound up before Chief Judge Randal Valenciano and was dismissed without prejudice on Oct. 24, 2011.

Second Deputy Prosecuting Attorney Samuel Jajich had requested the dismissal to allow the state to bring the case back through the grand jury process as a felony. The prosecution had received information that the property damage was higher than originally charged.

State Deputy Public Defender Christian Enright objected, but the matter was dismissed without prejudice.

In the meantime, a mediation order was issued from per diem Judge Joe Moss on April 18, 2011. Court records say that an agreement had been reached between the parties.

The new felony charges of second-degree criminal property damage were brought against Ragasa through an October 2011 indictment. It stated the damage value of the March 31 incident exceeded $1,500.

The evidence was based on an April 6, 2011, email between defense and prosecution attorneys who are no longer involved with the case. An email attachment reportedly contained an estimate of damages to show that it exceeded the parameters of the original misdemeanor charge.

Ragasa was arrested again for the charges on Nov. 22. This time the charge was felony second-degree criminal property damage.

At the time Ragasa had filed a request for a restraining order against the victim in the property damage case. It was dismissed when she didn’t appear at the Nov. 22 hearing.

The case was now a c-level felony and wound up before Judge Kathleen Watanabe. It was dismissed again without prejudice on Dec. 14.

Another charge of second-degree criminal property damage was filed on Dec. 29. Ragasa was arrested a third time on the charges on Jan. 23. She was arraigned again for a c-level felony offense on Jan. 31.

This time it was Ragasa’s attorney, Enright, who filed a motion to dismiss the case with prejudice, claiming retaliatory prosecution after the felony charge was dismissed from Watanabe’s court.

Enright said that without evidence to show reason, the case should be dismissed with prejudice. He said the new case is not malicious on the part of the prosecutor, but that the repeating charges are in effect retaliatory.

Deputy Prosecuting Attorney John Murphy said the case was re-filed according to evidence presented by the police report to show felony-level damage was committed. It was not a retaliatory act of the prosecutor’s office, he added.

If it was not dismissed, the case would continue as a misdemeanor charge, Murphy said. The prosecution weighed the risk of losing the felony case in dismissal based on the evidence, he added.

Valenciano denied Enright’s motion, saying there was no evidence of vindictiveness from the prosecution. He said the charges were appropriate and based on good cause.

It is not unusual to adjust a case up or down, based on new information, Valenciano said.

The court approved Enright’s request for the prosecution’s findings. A jury trial is scheduled May 7.

• Tom LaVenture, staff writer, can be reached at 245-3681 (ext. 224) or tlaventure@thegardenisland.com.

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