Appeal from the Superior Court of the District of Columbia (F-6592-04) (Hon. Brian Holeman, Trial Judge).
The opinion of the court was delivered by: Schwelb, Associate Judge
Before SCHWELB and FARRELL, Associate Judges, and BELSON, Senior Judge.
On January 11, 2005, a grand jury indicted Adrian Stephenson for carrying a pistol without a license (CPWOL) and two related weapons offenses. On May 9, 2005, Stephenson's attorney moved the court, pursuant to Super. Ct. Crim. R. 48 (b), to dismiss the indictment for lack of prosecution. The motion was based on the ground that the government had failed to secure the presence of Stephenson, who had been incarcerated in Prince George's County, Maryland, for several months, by means of a writ of habeas corpus ad prosequendum. The trial judge stated that defense counsel's "point is one well-taken" and added that "I'm going to dismiss this matter with prejudice." The prosecutor reacted by stating that she "unders[tood] dismissing without prejudice," but she argued that dismissal with prejudice was unwarranted. The judge then opined that "the government [has] interfered with the defendant's right to a speedy trial," and he reiterated that the case was dismissed with prejudice. On May 17, 2005, the government filed a motion for reconsideration, but on June 8, no ruling on the motion having been made, the government filed a notice of appeal from the order of dismissal.
Although no party has raised the question whether the order of May 9, 2005, was an appealable final order in spite of the pendency of the government's motion for reconsideration, we address that issue, as we must,*fn1 sua sponte, and we conclude that this court has jurisdiction over the appeal. On the merits, dismissal of an indictment with prejudice for want of prosecution is authorized only where the defendant has been deprived of his constitutional right to a speedy trial. United States v. Mack, 298 A.2d 509, 510 (D.C. 1972) (citations omitted). In this case, the judge apparently*fn2 dismissed the indictment for lack of a speedy trial without Stephenson's counsel having asked for such relief, and without any attempt to consider or apply the "sensitive balancing process" mandated by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 533 (1972), and by this court in Graves v. United States, 490 A.2d 1086, 1090-91 (D.C. 1984) (en banc), cert. denied, 474 U.S. 1064 (1986). We conclude that dismissal with prejudice was unwarranted on the record before the judge. Accordingly, we reverse the judgment and remand the case to the trial court for further proceedings consistent with this opinion.
Before reaching the substantive issues before us, we briefly address the question of subject matter jurisdiction. Generally, with exceptions not here applicable, this court has jurisdiction only of "final orders and judgments of the Superior Court of the District of Columbia." D.C. Code § 11-721 (a)(1) (2001). This is true in criminal cases, Anderson v. United States, 754 A.2d 920, 922 (D.C. 2000), as well as in civil suits. West v. Morris, 711 A.2d 1269, 1271 (D.C. 1998). "To be final under § 11-721 (a)(1), an order must dispose of the whole case on its merits, so that the court has nothing remaining to do but to execute the judgment or decree already rendered." Anderson, 754 A.2d at 922 (citations, brackets, and internal quotation marks omitted).
At the time the government filed its notice of appeal in this case, its motion for reconsideration was still pending. Nevertheless, the order of dismissal is appealable. "[I]n the absence of specific authority (which does not exist here), a motion for reconsideration does not toll the time for noting an appeal." Taylor v. United States, 603 A.2d 451, 458-59 (D.C. 1992).*fn3 Moreover, the denial of a motion to reconsider is not an appealable order. Id. at 458. More specifically, the government cannot appeal from an order denying reconsideration of an earlier order dismissing an indictment. United States v. Jones, 423 A.2d 193, 195 (D.C. 1980).
Thus, if the government had not filed a timely notice of appeal from the trial judge's order of May 9, it would have no right to appeal at all. Such a result would be contrary to D.C. Code § 23-104 (c) (2001), which expressly authorizes the government to appeal from the dismissal of an indictment. Moreover, once the notice of appeal had been filed, the trial court no longer had jurisdiction over the motion for reconsideration. Taylor, 603 A.2d at 453 n.7. These authorities, taken together, compel the conclusion that, notwithstanding the pendency in the trial court of the government's motion for reconsideration, the original order of dismissal was appealable. Accordingly, we have subject matter jurisdiction over the appeal.
To enable the reader to understand the context in which the indictment was dismissed with prejudice, a brief procedural history is in order. Stephenson was arrested on October 22, 2004, and charged with CPWOL and two related weapons offenses. At the preliminary hearing on November 9, 2004, at which Stephenson was present, the prosecutor announced that "the defendant has an outstanding case in Maryland for which there's a fugitive warrant." He added that "[w]e're going to allow him to go and take care of that." Without objection by the government, the Magistrate Judge dismissed the case for want of prosecution. The Magistrate Judge explained, however, that the dismissal was pending any action of the grand jury, and was thus obviously without prejudice.
On January 11, 2005, the grand jury returned an indictment against Stephenson, and Stephenson's arraignment was subsequently scheduled for January 31, 2005. On that date, Stephenson did not appear, but his attorney advised the court that his client was being held at the Prince George's County Detention Center on a charge of robbery. A status date was set for February 18, 2005,*fn4 to determine if the prosecution in Maryland would proceed. At the hearing on that date, defense counsel stated that Stephenson was still detained in Prince George's County, and he requested "that the government writ him in." The prosecutor responded that "we have no problem with that, but it would take a little while." She requested "about six weeks," and without defense objection, a hearing was set for April 8, 2005.
When the parties appeared before the court on April 8, Stephenson was not in court. A new prosecutor advised the court that "I have information from people in my office that indicate that [Stephenson] was never [incarcerated] in P.G. County." It quickly became apparent that government counsel was in error. Stephenson's attorney responded that he had visited his client in the Prince George's County Detention Center both on February 17, 2005, the day before the previous hearing, and on April 6, two days before the hearing of April 8.
Counsel provided the prosecutor with his client's inmate identification number. The judge set a new date for May 9, 2005, and he told the prosecutor that "we need to have you undertake any efforts necessary to get him here." The prosecutor responded, "Yes, Your Honor." Stephenson's counsel then advised the ...