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Name: Burris v. Superior Court
Case #: S109746
Court: CA Supreme Court
District CalSup
Opinion Date: 01/10/2005

Appellant was charged with a misdemeanor DUI with two prior convictions. Before trial, the prosecutor discovered a third prior conviction, and decided to dismiss the misdemeanor complaint and refile as a felony. Appellant moved to dismiss the felony complaint, arguing that dismissal of the misdemeanor complaint barred further prosecution for the same offense. The Court of Appeal denied appellant’s petition for writ of mandate, holding that Penal Code section 1387 does not bar a subsequent felony prosecution when the same criminal act was originally charged as a misdemeanor and dismissed. The California Supreme Court granted review, and affirmed the judgment of the Court of Appeal. Either a misdemeanor or a felony dismissal will bar a subsequent misdemeanor charge, while either two felony dismissals or one misdemeanor and one felony dismissal will bar a subsequent felony charge. To hold that a single misdemeanor filing and dismissal could preclude subsequent felony prosecution would be inconsistent with the Legislative intent to permit more dismissals for serious crimes.