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Charges against man in first SAFE Act conviction dismissed

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    #31
    Originally posted by Glenn B View Post
    I said this,





    Is it really not what was said or did you not read my post and then go to the supplied source because here is what the court's brief says:

    Could not be much plainer than that and as per the law the lower court must carry out what the higher court ordered as to the dismissal. You will note that not only did I look at the statute, I looked at the finding of the appeals court. LOL my arse.
    The "dismissal" is of the current indictment. There is NOTHING in the statute or court decision that said that the lower court couldn't re-file. Reversal" means the appellate court is overturning something that happened in the trial court. In this case it calls into question the jurisdiction of the Attorney General to prosecute.

    "Remand" means the case is being given back to the trial court to "fix" whatever it was that the appellate court found was wrong. It is still legally possible that the local DA could, in his discretion, bring a new indictment. If so, the charge(s) will be resurrected. No "double jeopardy" prevents a retrial. It's back almost to square one. If it is an offense that allows for bail the trial court will have to do that once the mandate (official order) is received from the appellate court. Thus the language in CPL 470.45. ".....or issue a securing order."

    For double jeopardy to apply there must of been some finding on the underlying facts, either by a jury or the court. The appellate court didn't touch the facts or merits of the prosecution, but instead dealt with the AG's authority to act as prosecutor (which had nothing to do with whether the defendant sold assault rifles). The remand was back to the locals for further handling. It wasn't a dismissal on the merits.

    This is my professional opinion.



    Ballistic: "Grif... You are my legal eagle spirit animal...."

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