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In re Trevor G.

Supreme Court of New Hampshire

February 7, 2014

In re Trevor G

Argued January 16, 2014.

6th Circuit Court -- Concord Family Division.

Joseph A. Foster, attorney general ( Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the juvenile.

CONBOY, J. DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred.

OPINION

Page 182

[166 N.H. 53] Conboy, J.

In this interlocutory appeal from an order of the 6th Circuit Court -- Concord Family Division ( Tenney, J.), the juvenile, Trevor G., challenges the court's denial of his motion to dismiss the delinquency petition against him. See S.Ct. R. 8. We reverse.

We take the facts as presented in the interlocutory appeal statement and its appendix. See State v. Fournier, 158 N.H. 441, 443, 969 A.2d 434 (2009). On July 31, 2012, the juvenile was arraigned on a delinquency petition alleging that he had endangered the welfare of a minor. An adjudicatory hearing was scheduled for August 23, 2012. At the August 23 hearing, the juvenile moved to dismiss the petition because none of the State's witnesses was present and, as a result, the State could not go forward with its case. The State acknowledged that it could not go forward with its case and did not object to dismissal of the petition. The State requested leave to file a motion for reconsideration in the event that it later learned that there had been a good reason, such as an emergency, that had prevented the witnesses from being present. The trial court granted the juvenile's motion and dismissed the case for lack of prosecution. The State did not move for reconsideration.

On October 1, 2012, the State refiled the petition. The juvenile was arraigned on October 10 and an adjudicatory hearing was scheduled for November 7. On October 18, the juvenile moved to dismiss the refiled petition, arguing that the adjudicatory hearing would not be held within the time limit prescribed in RSA 169-B:14, II, which requires that an adjudicatory hearing be held within thirty days of arraignment for juveniles who are not detained. See RSA 169-B:14, II (2002). The juvenile argued that the deadline for holding the adjudicatory hearing had to be [166 N.H. 54] measured from the date of his initial arraignment on July 31 and, therefore, the scheduled November 7 adjudicatory hearing would be untimely.

The court held a hearing on the juvenile's motion on October 30. At that hearing,

Page 183

the State disclosed that the State's witnesses were not present at the originally scheduled adjudicatory hearing because, although subpoenas had been issued, they were never served.

On November 2, the court issued an order denying the juvenile's motion, finding that this case is indistinguishable from In re Kirsten P., 158 N.H. 158, 960 A.2d 693 (2008). The court determined that, " [i]n both cases, the [juvenile] initiated the dismissal. Consequently, the State is not barred ...


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