               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 36933

STATE OF IDAHO,                                 )     2010 Unpublished Opinion No. 663
                                                )
       Plaintiff-Appellant,                     )     Filed: October 7, 2010
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
TIM MOSER,                                      )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Respondent.                    )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Bonner County. Hon. John T. Mitchell, District Judge.

       Order dismissing charges for delivery of a controlled substance and trafficking in
       methamphetamine, reversed and remanded.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.

       Molly J. Huskey, State Appellate Public Defender; Erik H. Lehtinen, Deputy
       Appellate Public Defender, Boise, for respondent. Ian. H. Thomson argued.
                   ______________________________________________
MELANSON, Judge
       The State of Idaho appeals from the district court’s order dismissing charges brought
against Tim Moser for delivery of a controlled substance and trafficking in methamphetamine.
For the reasons set forth below, we reverse and remand.
                                               I.
                                FACTS AND PROCEDURE
       Moser was charged with delivery of a controlled substance, I.C. §§ 37-2732(a)(1)(A) and
18-204, and trafficking in methamphetamine, I.C. §§ 37-2732B(a)(4), 19-2111, 18-204, and 18-
1701. The charges stemmed from a controlled drug buy involving a confidential informant. At a
preliminary hearing, the state did not call the confidential informant as a witness and the
magistrate dismissed the charges for lack of probable cause. The state promptly had Moser
rearrested and refiled the charges. At a preliminary hearing before a different magistrate, the
state presented additional evidence in the form of testimony from the confidential informant who

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was involved in the transaction. The magistrate found that probable cause existed and bound
Moser over to the district court on the felony charges. Moser filed a motion to dismiss on the
basis that his due process rights were violated because the state had refiled the charges in bad
faith or, alternatively, without good cause. The district court granted Moser’s motion to dismiss,
reasoning that the state had not shown a good faith basis to believe that the magistrate erred at
the first preliminary hearing because the state had not presented any newly discovered evidence
justifying refiling the charges. The state appeals.
                                                 II.
                                           ANALYSIS
       The filing of a subsequent criminal complaint following dismissal of the original criminal
complaint after preliminary proceedings is not a per se violation of due process. Stockwell v.
State, 98 Idaho 797, 805, 573 P.2d 116, 124 (1977). A criminal complaint may be refiled when
the state believes, in good faith, that the magistrate committed error in dismissing the case. Id. at
806, 573 P.2d at 125. The state can demonstrate good faith by producing additional evidence or
by showing the existence of other good cause for the refiling. Id. However, the dismissal and
refiling of criminal complaints by the prosecutor can violate a defendant’s right to due process
when done for the purpose of harassment, delay, or forum-shopping. State v. Bacon, 117 Idaho
679, 683, 791 P.2d 429, 433 (1990); Stockwell, 98 Idaho at 806, 573 P.2d at 125. Preaccusation
delay will constitute a violation of due process only if it caused substantial prejudice to the
defendant’s right to a fair trial and the delay was a deliberate device to gain an advantage over
the accused. State v. Kruse, 100 Idaho 877, 879, 606 P.2d 981, 983 (1980); State v. Burchard,
123 Idaho 382, 386, 848 P.2d 440, 444 (Ct. App. 1993).
       Moser argues that his due process rights were violated because the refiling of the criminal
complaint was done for the purpose of harassment, delay, or forum-shopping. On an appeal
from a motion to dismiss, this Court will review the entire record. See State v. Cook, 146 Idaho
261, 263, 192 P.3d 1085, 1087 (Ct. App. 2008). Here, the record does not suggest that the
refiling was done for the purpose of harassment, delay, or forum-shopping. The complaint was
subsequently refiled only once before a new magistrate, not multiple times. There is no evidence
that the state’s purpose in refiling was forum-shopping. In addition, the refiling caused very
little delay because the second complaint was filed only one day after the first complaint was




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dismissed. Therefore, the record demonstrates that the refiling was not done for the purpose of
harassment, delay, forum-shopping, or any other improper purpose.
       Moser also argues that the state did not refile in good faith because it failed to produce
any newly discovered evidence at the second preliminary hearing. Moser maintains that the state
failed the good faith basis test as set forth in Stockwell because the confidential informant was
available and could have been called to testify at the first preliminary hearing. The district court
agreed with Moser’s argument, holding:
       [The] motion to dismiss was filed two weeks ago by the defendant, and there’s
       been no brief submitted in response, no affidavit submitted [by the state] . . . to
       tell me about what the new evidence is, and there’s every indication in the file that
       there is no new evidence, that the confidential informant was known, that the
       confidential informant was on probation and obviously could be found.
               The State’s at no time made any sort of claim . . . that the confidential
       informant was simply not available on the 21st or the 22nd of May, so not being
       able to establish that the witness was unavailable, there is no new evidence that
       could justify the re-filing of the charges.

       We disagree that the state must present newly discovered evidence in order to act in good
faith. Stockwell provides that, without the production of additional evidence or the existence of
other good cause, the practice of refiling a complaint against a defendant can become a form of
harassment that may violate his or her due process rights. Stockwell, 98 Idaho at 806, 573 P.2d
at 125. Contrary to the district court’s holding, Stockwell does not require that the evidence
presented be entirely new and previously undiscovered. Despite the state’s lack of preparation
and inability to articulate to the district court the reasons for the refiling, it is apparent from the
record that the state had a good faith basis for refiling its complaint against Moser. The record
reveals that the reason for the refiling was to present additional evidence in the form of testimony
by the confidential informant. It is immaterial that the informant was available at the first
hearing because the Stockwell test for finding a good faith basis for refiling may be satisfied by
additional evidence, not just newly discovered evidence. To hold otherwise would require the
state to make its entire trial presentation at the preliminary hearing or run the risk of a magistrate
finding that something less than the entire presentation fell short of probable cause. In such a
case, the state would be left without recourse unless it had the good fortune of discovering some
bit of evidence, however insignificant, that was previously unknown. Therefore, the district
court erred in holding that the state lacked a good faith basis for refiling the complaint against


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Moser because it did not present new, previously unknown evidence at the second preliminary
hearing.
                                                III.
                                         CONCLUSION
       The district court erred in holding that the state acted in bad faith because it had failed to
present newly discovered evidence at the second preliminary hearing. Accordingly, the district
court’s order dismissing charges brought against Moser for delivery of a controlled substance
and trafficking in methamphetamine is reversed, and the case is remanded for further
proceedings.
       Chief Judge LANSING and Judge GRATTON, CONCUR.




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