Appeal from the Superior Court of the District of Columbia (DVM1516-03) (Hon. Gerald I. Fisher, Trial Judge) .
The opinion of the court was delivered by: Steadman, Senior Judge
Submitted September 14, 2006
Before FARRELL and REID, Associate Judges, and STEADMAN, Senior Judge.
Appellant Carlos Lyles was convicted at a bench trial of simple assault*fn1 arising from a domestic dispute. Before the trial began, the trial court orally dismissed the charge but then, later that day, rescinded the dismissal and held the trial. In this appeal, Lyles contends that the trial court lacked jurisdiction over his case, absent a refiling of charges, because of the oral dismissal.*fn2 We review questions of subject matter jurisdiction de novo. Heard v. Johnson, 810 A.2d 871, 877 (D.C. 2002). We hold that since the oral dismissal had not yet been entered on the docket, the trial court retained the power to rescind the oral dismissal, absent undue prejudice to the defendant.
Lyles' case was originally called for trial at 9:30 a.m. on the morning of June 23, 2003. After the complaining witness failed to appear, the trial judge orally granted the defense motion to dismiss without prejudice for want of prosecution.*fn3 Approximately one hour later, and prior to the clerk's entry of the oral dismissal on the docket, the witness appeared and the court notified counsel that it was recalling the case. When the parties returned to court that afternoon, the trial court rescinded its order of dismissal and reinstated the charge against Lyles, over defense objection that the dismissal had divested the court of jurisdiction and that Lyles would be prejudiced because his defense witnesses had been discharged and he was subject to continued detention. In response, the trial court agreed to release Lyles to a halfway house pending conclusion of the trial, which began that afternoon, and offered flexibility in rescheduling the proceedings so any desired defense witnesses could be present. Lyles was subsequently found guilty of assault and timely noted this appeal.
We begin our analysis with, to our knowledge, the only controlling precedent involving the issue before us. In United States v. Green, 134 U.S. App. D.C. 278, 414 F.2d 1174 (1969),*fn4 the trial court orally granted the defendant's post-verdict motion to dismiss because a government informant was not produced for questioning as to the relevance of his information to the defense. The court then immediately withdrew its oral order, after the government objected that it had not been given an opportunity to respond, and sua sponte granted a new trial on the condition that the witness be produced. The District of Columbia Circuit held that "under these circumstances the oral ruling [of dismissal] has no legal significance and is not a judgment of acquittal barring further prosecution." Id. at 279, 414 F.2d at 1175. The court observed: "The oral ruling of a trial judge is not immutable, and is of course subject to further reflection, reconsideration and change." Id.*fn5
Green thus establishes that the fact that a trial court has orally dismissed a case does not ipso facto end its jurisdiction over the case. In Green, the trial court "immediately" withdrew its ruling. The question in our case is how much longer a an oral order of dismissal remains subject to rescission. We conclude that the power to rescind continues at least to the point of entry of the order of dismissal on the court docket. Docket entries, while primarily ministerial, serve a vital administrative function in documenting the actions of the court and marking critical dates for appeal and other post-judgment procedures. See Wise v. United States, 293 A.2d 869, 871 (D.C. 1972) ("[T]he task of precisely accounting for each charge against an individual and the disposition is not a mere clerical formality but is crucial to the official recordkeeping in the criminal process upon which an individual's rights and liberty may depend.").
Marking the finality of oral orders of dismissal at least no sooner than the point of docket entry promotes consistency in the law of this jurisdiction. See, e.g., D.C. App. R. 4 (b)(5) (2006) ("A judgment or order is deemed to be entered . . . when it is entered on the criminal docket by the Clerk of the Superior Court."); D.C. App. R. 4 (b)(2) (2006) ("A notice of appeal filed after the announcement of a verdict, decision, sentence, or order - but before the entry of the judgment or order - is treated as filed on the date of and after the entry. If a notice of appeal filed after a verdict is not followed by the entry of a judgment, the appeal is subject to dismissal at any time for lack of jurisdiction."); see also Super. Ct. Civ. R. 58 (2006) (providing that a civil judgment is effective only when formally entered on the docket). See generally 49 C.J.S. Judgments § 113, at 182-83 (1997) ("A judgment is not final, in the sense that it cannot be withdrawn or changed by the court, until it has been entered, and the announcement of a judgment, without its being filed, does not lessen the trial court's jurisdiction to consider other motions or to enter other orders or judgments. On entry, a judgment passes beyond control of the court, except to vacate or modify it in accordance with the usual rules.") (citation footnotes omitted). Under the circumstances of this case, we see no reason to depart from the general practice of deeming an oral order interlocutory at least until it is entered on the docket.*fn6
In reaching this conclusion, we are unpersuaded by the cases relied on by Lyles, District of Columbia v. Eck, 476 A.2d 687 (D.C. 1984), and United States v. Cummings, 301 A.2d 229 (D.C. 1973). He is correct that an order dismissing an indictment or information without prejudice is generally considered a final order that may be appealed by the prosecutor. See D.C. Code § 23-104 (c) (2001) ("The United States or the District of Columbia may appeal an order dismissing an indictment or information . . . except where there is an acquittal on the merits."); see also Eck, 476 A.2d at 689 ("Dismissal of an information without prejudice is ordinarily a final order."); Cummings, 301 A.2d at 231 ("[D]ismissal of an indictment without prejudice is an appealable order, i.e., a termination of prosecution under § 23-104."). However, none of the cited authorities addresses the special situation of an oral order of dismissal prior to its entry on the docket, and thus none supports the proposition that such an oral order must be considered final rather than interlocutory.*fn7
We are dealing here with an oral order of dismissal without prejudice before jeopardy attached. But it is useful to compare the precedents of this and other courts regarding the withdrawal of oral orders of acquittal, with the potential of double jeopardy consequences.
In Stewart v. United States, 439 A.2d 461 (D.C. 1981), appellant moved for a judgment of acquittal at the close of the government's case. The government moved to reopen. The trial court first denied the government's motion and orally granted the judgment of acquittal. It then reconsidered its ruling and, over objection, allowed the government to reopen its case. We found no double jeopardy bar, noting, among other things, that "no final judgment of acquittal was entered on any court documents" and "the colloquy between court and counsel occurred outside of the presence of the jury." Id. at 464. A number of other cases are to the same effect. See, e.g., United States v. Washington, 48 F.3d 73, 79 (2d Cir. 1995) (permitting trial judge to reverse oral order of acquittal, made outside the presence of the jury, before entry of judgment and after the opportunity for reconsideration during the lunch adjournment of the trial on the remaining charges) (quoting United States v. LoRusso, 695 F.2d 45, 52-53 (2d Cir. 1982)); United States v. Baggett, 251 F.3d 1087, 1095 (6th Cir. 2001) (permitting trial judge to rescind oral order of acquittal, prior to the entry of judgment, that was made outside the jury's presence and after the jury returned its verdict); United States v. Byrne, 203 F.3d 671, 674-75 (9th Cir. 2000) (permitting trial ...