State v. Bouma

POLEN, Judge.

In this case we are asked to review the trial court’s order dismissing the case for lack of prosecution because the state was unable to produce a key witness, the victim, at a deposition. We find this was an improper exercise of discretion and reverse.

Whether the dismissal was a sanction for failure to appear for a deposition or based on the conclusion that the state had no reasonable expectation of finding the witness and prosecuting the case, the trial court infringed upon the state’s territory. The decision to prosecute is a determination to be made by the state, not the trial…