The evidence was suppressed, and the state appealed and it was affirmed. They dismissed and refiled later. The prior ruling was “law of the case,” and the state is bound by it. State v. Parry, 2017 Kan. LEXIS 116 (March 24, 2017) (see Treatise § 60.54):
This brings us to the central issue: whether the law of the case on the evidence suppression question as settled in Parry I applies in this new proceeding. More precisely, are the proceedings in this case successive stages of the same suit as Parry I? The panel majority concluded these cases should be treated as a single proceeding, “even though, technically, this case is not the same case as Parry I.” Parry II, 51 Kan. App. 2d at 931. We agree.
Typically, after a decision affirming the evidence’s suppression, as in Parry I, a case would have returned to the district court for the State to decide if it could proceed without the suppressed evidence. But instead, in its prosecution against Parry, the State dismissed the first case against him without prejudice and then refiled the same criminal charges under a new case number. The State admits its purpose in doing this was to have a technically “new” case, in which to try again to meet its burden to justify the officers’ warrantless search. As the panel majority aptly described it, “The State wanted a do-over on the issue of the constitutionality of the police search of Parry’s residence and the seizure of the marijuana and paraphernalia from inside the home, so it could assert arguments it failed to raise during the first hearing.” Parry II, 51 Kan. App. 2d at 931.
There is no dispute that a county attorney has the legal authority to dismiss and refile criminal charges. See State v. Ratley, 253 Kan. 394, 401, 855 P.2d 943 (1993) (“The district attorney is the representative of the state in criminal prosecutions. He controls criminal prosecutions. He has the authority to dismiss any charge ….”); State v. Hanson, 280 Kan. 709, 719, 124 P.3d 486 (2005) (holding jeopardy did not attach to de novo appeal to district court from magistrate court conviction, so State could refile same charges after district court dismissed appeal without prejudice). But this alone does not mean an issue decided in the previous criminal action has no preclusive effect in the new one. For this reason, State v. Zimmerman & Schmidt, 233 Kan. 151, 660 P.2d 960 (1983), State v. Rowland, 172 Kan. 224, 239 P.2d 949 (1952), and other related cases, illustrating the State’s power to dismiss and refile criminal cases, cited in Judge Gardner’s dissent and embraced by the State, are not dispositive. See Parry II, 51 Kan. App. 2d at 937.
With Parry, the State refiled identical criminal charges on the same facts against the same defendant after losing the first interlocutory appeal just so it could repackage the same issue it had already lost. It did so only as a means to revive a dead issue. And to ignore this reality would defeat the long standing purposes supporting the law of the case doctrine. See Poulin, Prosecution Use of Estoppel and Related Doctrines in Criminal Cases: Promoting Consistency, Tolerating Inconsistency, 64 Rutgers L. Rev. 409, 428 n.79 (2012) (“Rulings favorable to the defendant should be treated as law of the case, otherwise the government could dismiss and refile to effectively void an unfavorable pretrial ruling.”).
As the panel majority recited, this court has viewed the filing of the same criminal charges against the same defendant in successive cases as a single action for purposes of computing speedy trial times under K.S.A. 22-3402. See Parry II, 51 Kan. App. 2d at 931 (citing State v. Cuezze, Houston & Faltico, 225 Kan. 274, 277-78, 589 P.2d 626 [1979], and State v. Goss, 245 Kan. 189, 192, 777 P.2d 781 [1989] [characterizing circumstances when the State obviously dismisses and refiles criminal charges to avoid the speedy trial requirements as a subterfuge]). …
We agree. Parry’s second prosecution amounted to a successive stage in the same criminal prosecution, in which the State had already litigated—and lost—the suppression issue. Accordingly, we affirm the panel majority’s determination to invoke the law of the case doctrine to uphold the district court’s granting of Parry’s second motion to suppress the evidence secured in the warrantless search.
