The Chief Justice has requested that the Committee discuss amending Rule 48 to correct
a possible interpretation issue created by a recent case. 

State v. Ferrie involved two persons who were arrested and subsequently bonded
out.  Both
appeared timely at their initial appearance.  Because the state had not filed charging
documents, the district court dismissed the cases for failure to prosecute.  A copy of the
Ferrie opinion is attached. 

Justice Sandstrom, joined by the Chief Justice, wrote that the district court's dismissal
should be vacated because Rule 48(b) only allowed a court to dismiss "an indictment,
information or complaint" and none of those documents had been filed. 

Justice Kapsner concurred that the district court's dismissal should be vacated, but she
disagreed with Justice Sandstrom's conclusion about the interpretation of Rule 48(b), writing
at length that the rule was intended to allow dismissal of a criminal case when there had been
an unreasonable delay in filing a charging document. 

Justice Maring, joined by Justice Crothers, dissented, writing that the case should be
remanded for further consideration of whether dismissal was appropriate.  Justice Maring
and Crothers, however, agreed with Justice Kapsner that Rule 48(b) allows a court to dismiss
a criminal case for delay in filing the charging document. 

The language of Rule 48(b) essentially echoes the language of the federal rule and a copy
of Fed. R.Crim. P. 48 is attached for the Committee's reference.  As discussion at the
Committee's September 2008 meeting made clear, however, North Dakota defendants can
be brought before the court based on a citation.  Therefore, it may be appropriate to depart
from the federal language to account for this apparent difference in practice. 

Staff has prepared proposed amendments to Rule 48(b) that would allow the court to
dismiss a "criminal action" for unreasonable delay in filing the charging document.  Justice
Kapsner used this term in her concurrence.  Depending on how the Committee addressed the
proposed changes to N.D.R.Crim. P. 3, 5 and 7, which were presented earlier in the agenda
materials, different language or a different approach altogether to Rule 48 may be in order.