Free Order on Motion to Dismiss All Charges - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Charles T. Winkler, 13 Defendant. 14 15 Currently before the Court is Defendant's pro se motion to dismiss case for want of 16 prosecution. (Dkt. #31). Having reviewed the motion the Court issues the following Order. 17 I. 18 On October 21, 2002, Defendant pleaded guilty to violating 18 U.S.C. § 1708, Theft 19 of Mail. The Court sentenced Defendant to a term of seven months imprisonment and upon 20 release from imprisonment a term of thirty-six months of supervised release. Subsequently, 21 the Court signed a petition and a superseding petition to revoke Defendant's supervised 22 release, alleging Defendant had violated the terms of his supervised release by committing 23 identity theft. Defendant is serving a term of seven and a half years imprisonment, imposed 24 by the Superior Court of Maricopa County arising out of identity theft charges. 25 On November 30, 2004, Defendant filed a pro se motion to dismiss charges or for a 26 speedy trial, requesting the Court to quash the petition to revoke his supervised release 27 because his current state sentence of seven and a half years is greater then the term of 28
Case 2:02-cr-00460-MHM Document 33 Filed 08/05/2005 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs.

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CR 02-0460-001-PHX-MHM ORDER

Background

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Defendant's federal sentence, thirty-six months of supervised release. Hence, Defendant argued revoking his supervised release would be superfluous. On January 14, 2005, the Court denied the motion because any sentence the Court imposes pursuant to revoking Defendant's supervised release would likely run consecutively to Defendant's state sentence. II. Discussion Currently, in his motion to dismiss charges, Defendant requests the Court dismiss the charges for want of prosecution or resolve the matter with no excludable delay because additional punishment would cause a harsh burden on Defendant and his family. Defendant's motion is essentially a motion for reconsideration of the Court's January 14, 2005 Order. Motions for reconsideration are disfavored and are only appropriate if the Court (1) is presented with newly discovered evidence; (2) committed clear error or the initial decision was manifestly unjust; or (3) if there is an intervening change in controlling law. United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) citing Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993) cert. denied, 508 U.S. 951 (1993). As Plaintiff essentially makes the same argument as previously articulated, he has not stated a basis for reconsideration of this Court's Order, denying his request to dismiss the charges or for a speedy trial. See Alexander, 106 F.3d at 876 (setting forth three

circumstances where reconsideration is appropriate). Furthermore, Defendant's arguments are without merit because the Government may postpone prosecuting the revocation of Defendant's supervised release until after Defendant is released from state custody. United States v. Garrett. 253 F.3d 443, 449 (9th Cir. 2001). Accordingly, IT IS HEREBY ORDERED that Defendant's motion to dismiss case for want of prosecution is denied. (Dkt. #31). DATED this 5th day of August, 2005.

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