Can prosecutors avoid Brickey by continuing rather than dismissing preliminary hearings? State v. Rogers Explained

In State v. Rogers, the Utah Court of Appeals addressed whether prosecutors can circumvent the protective rule from State v. Brickey by requesting continuances of preliminary hearings rather than accepting dismissals when evidence is insufficient.

Background and Facts

Rogers was charged with felony theft by receiving stolen property after baseball memorabilia stolen from Hildebrand’s apartment was found in his possession. At the preliminary hearing, the State presented testimony from the victim, a baseball card shop owner, and a detective. However, when defense counsel cross-examined witnesses about the value of the stolen items—necessary to establish a second-degree felony requiring property worth at least $5,000—the State’s witnesses were unprepared. Hildebrand admitted he could not remember specific values and would need to “bring the list,” while the shop owner could not identify or value the cards presented to him.

Key Legal Issues

The central issue was whether the Brickey doctrine, which limits prosecutors’ ability to refile charges dismissed for insufficient evidence, applies to continuances of preliminary hearings. Under Brickey, refiling is permitted only when “new or previously unavailable evidence has surfaced” or “other good cause” exists, including “innocent miscalculation” of the evidence needed for bindover.

Court’s Analysis and Holding

The Court of Appeals held that Brickey applies to continuances of preliminary hearings, not just dismissals followed by refilings. The court reasoned that “the potential for abuse by the prosecution and for harm to the defendant” is “essentially the same” in both situations. Prosecutors cannot “completely avoid Brickey by getting a preliminary hearing continued, rather than charges dismissed.”

Critically, the court found the State’s unpreparedness was not an “innocent miscalculation” but rather “dilatory preparation.” Unlike cases where prosecutors innocently misjudge evidence sufficiency, here the State was “wholly unprepared” to present evidence on an “essential element” of the charged offense. The evidence was readily available—Hildebrand had indicated he could prepare itemized lists and had receipts at home.

Practice Implications

This decision significantly impacts preliminary hearing practice. Prosecutors must come prepared with evidence on all essential elements, as courts may now apply Brickey protections to prevent continuances when prosecutors are inadequately prepared. The ruling also clarifies that in theft by receiving cases, prosecutors must focus on the value of property actually found in the defendant’s possession, not the total value of property stolen from the victim.