People of Guam v Palomo [1998] GUSC 11; 1998 Guam 12 (15 July 1998)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM, ) Supreme Court Case No. CRA97-018

) Superior Court Case No. CM0359-96

Plaintiff-Appellant, )

)

vs. )

) OPINION

PETER G. R. PALOMO, )

)

Defendant-Appellee. )

__________________________________________)

Filed: July 15, 1998

Cite as: 1998 Guam 12

Appeal from the Superior Court of Guam
Argued and Submitted on May 3, 1998
Hagåtña, Guam

Appearing for the Plaintiff-Appellant:
MYLENE N. R. LOPEZ
Assistant Attorney General
Office of the Attorney General
Prosecution Division
Suite 2-200E Judicial Center Building
120 West O=Brien Drive
Hagåtña, Guam 96910

Appearing for the Defendant-Appellee:
DANIEL R. DEL PRIORE
Law Offices of Del Priore &Associates, P.C.
Suite 507, GCIC Building
414 West Soledad Avenue
Hagåtña, Guam 96910

BEFORE: PETER C. SIGUENZA, Chief Justice; JANET HEALY WEEKS, and BENJAMIN J. F. CRUZ, Associate Justices.

CRUZ, J:

[1] The court reviews this matter pursuant to an appeal from the Superior Court after the trial court dismissed the case based on the People=s failure to charge out the case prior to the Anotice to appear@ date given to the Defendant-Appellee at the time when he was booked and released. The People contend that they are given great discretion for charging out cases and that they are not controlled by the notice to appear date. The trial court, having previously ruled on the same issue, found that the applicable statute requires the People to make a determination prior to the notice to appear date to either file a complaint in the case or, if no complaint is to be filed, to make reasonable efforts to notify the defendant that appearance on the notice to appear date is unnecessary. As a result, the trial court dismissed the case against the Defendant-Appellee with prejudice. The court agrees with and adopts the trial court=s interpretation of the applicable statute. The trial court=s dismissal of the case is hereby AFFIRMED.

FACTUAL AND PROCEDURAL BACKGROUND

[2] The Defendant, Peter Gerard Roberto Palomo, was arrested for Driving Under the Influence of Alcohol (DUI) on August 28, 1995. The Defendant was also subjected to a breath test which yielded a result of greater than .08% B.A.C. The Defendant was booked and released and given a copy of a ANotice to Appear@ ordering him to appear before the Superior Court on November 29, 1995. On the date of his notice to appear the Defendant had not been previously served with a Complaint pursuant to 8 GCA ' 45.20 (1993), nor was the Defendant advised not to appear. On March 19, 1996, the Government filed a Complaint with supporting affidavit of probable cause charging the Defendant with DUI, as a misdemeanor, and Driving While Having .08% or More of Alcohol. On March 21, 1997, the Defendant filed a motion to dismiss based on the People=s failure to timely issue a complaint or inform the Defendant not to appear pursuant to 8 GCA ' 25.30 (1995). The court heard arguments and on August 21, 1997 issued a written decision and order on August 28, 1997 dismissing the case with prejudice. A timely notice of appeal was then filed on September 24, 1997.[1]

ISSUES

[3] The People raise the following issues on appeal: (1) The issues presented in the case are not properly before the court because the trial court erred in ignoring binding precedent. (2) Whether the trial court erred in dismissing the case with prejudice based on the defendant=s claim of untimely prosecution.