Request By:
Mr. James M. Groves
Todd Circuit Court Clerk
Elkton, Kentucky 42220
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question concerns KRS 64.020(2), which provides a circuit clerk's fee of $10.00 payable out of the state treasury for services rendered in felony prosecutions. The exception: If the defendant is convicted only of a misdemeanor.
Your question is whether or not the clerk can claim this fee in a particular case in which an order is entered by the court on an indictment that contains the phrase "dismissed with leave to reinstate. " (Emphasis added).
Judge Nunn, in Bosworth v. Lay, 150 Ky. 638, 150 S.W. 809 (1912) 810, wrote, in connection with the earlier form of KRS 64.020, that the clerk's fee is due and payable when the case is taken from the docket by either dismissing or quashing the indictment, or by a trial before a jury. Thus the clerk can submit the claim to the Department for Finance and Administration only if there has been a final disposition of the indictment by way of dismissal or quashing of the indictment or by a trial.
We note that RCr 9.64 deals with the dismissal of an indictment, but it says nothing about a dismissal with leave to reinstate. We are unaware of any legislative provision for a "dismissal of an indictment with leave to reinstate. " Notwithstanding this lack of legislative authority, the appellate court has upheld the court practice of "filing away" an indictment with leave to reinstate on the active docket, provided that such an order is not entered over the objection of the accused.
Van Arsdale v. Caswell, Ky., 311 S.W.2d 404 (1958) 407. The court in Van Arsdale held that a "filing away" order does not operate as a dismissal of the indictment but is only an indefinite continuance and an exoneration of the bail for appearance, unless the contrary should appear in the order, which case may be reinstated on the docket upon reasonable notice at any time after such is entered.
It is our opinion that the court, in its order, merely intended that the indictment be filed away, subject to reinstatement, although we realize that the word "dismiss" is in conflict [it is a contradiction] with the phrase "with leave to reinstate. " Assuming that the defendant made no objection to such order, it amounts to a "filing away with leave to reinstate. " [See § 11, Ky. Const. - right to speedy trial]. Thus it reflects an indefinite continuance of the case. Under this analysis, since there was no final disposition of the indictment, the clerk is not entitled to submit a claim on such indictment at this stage.
KRS 64.020 is repealed as of January 2, 1978. See Acts 1976 (Ex. Sess.), Ch. 14.