                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0888
                             Filed October 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KIRSTEN MARIE CARNEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mary E. Howes,

Judge.



      Kristen Carney appeals her convictions for drug-related charges.

AFFIRMED.



      G. Brian Weiler, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Heard by Danilson, C.J., Doyle, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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GOODHUE, Senior Judge.

       Kristen Carney was found guilty of eleven counts of drug-related charges.

Carney appeals. We affirm.

       I.     Background Facts and Proceedings

       Carney’s vehicle was stopped by the police on October 8, 2013, based on

their knowledge that her operator’s license had been suspended. Her car was

searched, and numerous bottles of prescription pills, as well as multiple paper

prescriptions for the pills, were found.     A search warrant was obtained for

Carney’s home, and more prescribed pills—as well as 113 paper prescriptions—

were found, some of which law enforcement determined had been forged.

       On October 9, a complaint was filed that included six drug-related

charges, which were alleged to have taken place on October 8, 2013.             On

November 13, the State moved to dismiss the charges “in the interest of justice,”

alleging, “New information has come to light regarding the defendant’s

involvement in obtaining additional fraudulent prescriptions” and “subpoenas

have been issued to gather documentation reflecting further criminal acts

committed by the defendant.” The motion to dismiss was granted on the same

day it was filed, based on the assertions of the State and without any type of

hearing or notice to Carney.

       On March 20, 2014, the State filed a trial information charging Carney with

fifteen drug-related offenses. Carney filed a motion to dismiss for violation of her

speedy-trial and speedy-indictment rights, as well as her due-process rights to be

heard on the initial dismissal. She maintained the State should be barred from

refiling the charges. A motion to suppress certain evidence was filed with the
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notice to dismiss. Both requests were denied, but the motion to suppress was

not included in Carney’s brief on appeal.

      An evidentiary hearing on the motion to dismiss the new charges was

held. Four of the original fifteen counts were dismissed by the State for various

reasons. The parties then stipulated that Carney would go to trial before the

court on the basis of the minutes of evidence attached to the trial information.

Carney was found guilty on all eleven counts remaining.

      Carney contends the State did not establish the prior dismissal was made

in the interest of justice but was instead filed to evade the speedy-trial deadline.

Carney also contended the dismissal of the prior charges without notice to her

was a denial of her due-process rights.

      II.       Issue Preservation

      The State does not contest error preservation as to either issue.

      III.      Issues Presented

      A. Whether Dismissal Was Made in the Interest of Justice or to Evade the
         Speedy-Trial Rights

             1. Scope of Review

      Our review of a State’s motion to dismiss the original charge under the

authority of Iowa Rule of Criminal Procedure 2.33(1) is for an abuse of discretion.

See State v. Brummage, 435 N.W.2d 337, 341 (Iowa 1989) (citing what was then

rule 27(1)). An abuse of discretion exists only when the court’s discretion is

exercised on grounds clearly untenable or unreasonable. Id.

      Our review of the motion to dismiss the second charge for lack of speedy

trial or speedy indictment is for errors of law. State v. Lyrek, 385 N.W.2d 248,
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250 (Iowa 1986). As such, we are bound by the findings of fact made by the trial

court if supported by substantial evidence. Id.

          2. Discussion

      Dismissal of a criminal charge can be made in the “furtherance of justice”

if the reasons are stated in the order. Iowa R. Crim. P. 2.33(1). Such a dismissal

is not a bar to a subsequent prosecution if the offense charged is an aggravated

misdemeanor or a felony. Id. This is true even if the new charge is identical to

the original charge and no new evidence has been obtained or other charges

filed, as long as the dismissal was filed in good faith. State v. Knox, 464 N.W.2d

445, 446 (Iowa 1990). Each of the charges for which Carney was found guilty is

either an aggravated misdemeanor or a felony. However, if the dismissal of the

October charge was to avoid dismissal under the speedy-trial rules rather than in

the “interests of justice,” felonies and aggravated misdemeanors are also barred.

See State v. Moritz, 293 N.W.2d 235, 238 (Iowa 1980) (citing State v. Johnson,

217 N.W.2d 609, 612 (1974)). To hold otherwise would drain the speedy-trial

rights of an accused of any meaning. See Johnson, 217 N.W 2d at 612.

      The State requested the motion to dismiss based on the belief there were

additional fraudulent prescriptions.    The State asked for dismissal without

prejudice pending further investigation. The “furtherance of justice” for purposes

of the rule has been defined to include facilitating the State in gathering

additional evidence. State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984). The

State did do further investigation, and other charges were filed. Subpoenas were

issued, and the records of all prescriptions filled by various pharmacies for

Carney was obtained.      The physicians who allegedly wrote the prescriptions
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were interviewed. One of the doctors denied Carney was ever a patient in his

practice. The second doctor eventually found time to be interviewed and went

through the written prescriptions obtained from the pharmacy on an individual

basis to determine which ones she had signed and which ones had been forged.

       The district court, in refusing to dismiss the March 20 trial information,

applied the abuse of discretion standard to the original dismissal and found the

court did not abuse its discretion in granting the motion to dismiss. The trial court

specifically found, “The State was not acting in bad faith and had a valid reason

to dismiss the case.” The trial court’s finding of fact is supported by substantial

evidence.

       B. Denial of Due-Process Rights

            1. Scope of Review

       Denial-of-due-process claims are reviewed de novo. State v. Neiderbach,

837 N.W.2d 180, 190 (Iowa 2013).

            2. Discussion

       Carney contends her due-process rights were violated when the original

charge was dismissed without notifying her prior to dismissal. The rule permitting

the prosecution to dismiss a case in the “furtherance of justice” with the court’s

approval does not require any notice to the accused when the dismissal is

requested by the prosecution.       Iowa R. Crim. P. 2.33(1).      However, if the

dismissal is proposed by the court, then a fair opportunity for each side to be

heard must be afforded. Brummage, 351 N.W.2d at 340.

       Carney was given the opportunity to be heard on the initial dismissal when

she moved to dismiss the new charges that are before us for review. It is the
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alleged refiling or new filing of charges that is Carney’s real complaint, not the

dismissal of the October 8 charges. Carney had the opportunity to object to the

March 20 filing and did so by filing a motion to dismiss the new charges.

       Carney also relies on the Iowa Rules of Criminal Procedure to support her

claim she should have received notice of the motion. She cites rule 2.27(1),

which requires a defendant to be present at all pretrial proceedings. If a motion

to dismiss is not granted, it cannot prejudice the defendant in any way. If the

motion to dismiss is granted, there is no case pending once the motion has been

granted. Once again, the defendant’s rights have not been prejudiced.

       Carney also cites rule 2.34(2), which requires all motions in a criminal

action be served in the same manner as civil actions. Carney notes that Iowa

Rule of Civil Procedure 1.442(1) requires that “every written motion including one

which may be heard ex parte” requires service on the other party. However,

there is one clear exception. Iowa Rule of Civil Procedure 1.943 provides that a

plaintiff may dismiss a petition “without order of court . . . at any time up until ten

days before the trial is scheduled to begin.” There is not even a requirement of

court approval when a civil petition is dismissed by the plaintiff.

       “The due process protection in prosecutorial delay cases is available to a

defendant to make sure the State will not employ tricks to gain an advantage

over a defendant.” State v. Isaac, 537 N.W.2d 786, 788 (Iowa 1995). To raise a

due-process claim, Carney must show the delay was unreasonable and actually

prejudicial. See id. She has shown neither. The hearing was held pursuant to

her motion, and she had a full opportunity to press her claim, as stated

previously. Carney can hardly object to the dismissal of the initial charge. In
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reality, her objection is to the new charge. The trial court’s denial of the motion to

dismiss is affirmed.

       AFFIRMED.
