Can a motion to dismiss a criminal charge be considered as a "proposal" rather than a formal motion?

California, United States of America


The following excerpt is from People v. Brooks, 162 Cal.Rptr. 177, 26 Cal.3d 471, 605 P.2d 1306 (Cal. 1980):

2 The People suggest it was error for the court to act on defendant's motion rather than on its own initiative, requiring reversal of the order of dismissal. Section 1385 provides for dismissal of an action on either the court's own motion or application of the prosecuting attorney, when to do so would be in furtherance of justice, and requires the reasons therefor to be set forth in the order of dismissal. "(W)hile a defendant can informally suggest that a court consider a dismissal of charges against him, section 1385 does not provide for a formal motion by the defense to accomplish the same result. (Citation.)" (People v. Smith (1975) 53 Cal.App.3d 655, 657-658, 126 Cal.Rptr. 195, 197.) Our review of the record discloses that defendant's motion in the present case was made in response to the People's statement that they were unable to proceed. The court dismissed "because of the People's refusal to prosecute," albeit it characterized its action as granting defendant's motion to dismiss. In these circumstances, we deem defendant's "motion" more a suggestion to the court than a formal motion. In any event, since reversal of the order of dismissal would not affect the order of suppression, the People have not urged this point.

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