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The Denied Motion to Dismiss

In my career, I have had a front row seat as people try to fight their criminal cases without the assistance of an attorney. One repeating pitfall is the “Motion to Dismiss”. Pro se litigants, time and again, file papers with the Courts, asking that the charges be dismissed. I see it used to point out inconsistencies in witness stories, alleged police misconduct, or as a way to tell “my side of the story”. This always fails.

There is a proper way for a defendant to file a motion to dismiss. The statute is I.C.§35-34-1-4, and it allows the Court to dismiss criminal charges if the right conditions are met, most of which involve technical errors in the formal documents filed by the State. The statute does not transform the judge into the jury and allow her to decide the facts of the matter without a trial.

Even when it is used correctly, this motion is not the cure all that it might seem.

Subsection f of the statute reads: "An order of dismissal does not, of itself, constitute a bar to a subsequent prosecution of the same crime or crimes except as otherwise provided by law."

So, even if you win this battle, you could still lose the war.

As an experienced criminal defense attorney, I consider it my job to point my client’s “fight” in the right direction.

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