State v. Fischer
In State v. Fischer, 285 A.2d 417, 420 (Del. 1971), the Supreme Court affirmed the Superior Court's discretionary decision to dismiss pursuant to 48(b). Id.
In that case, the state properly transferred the case by first filing a nolle prosequi in the lower court and refilling the charges in the higher court. State v. Fischer, 269 A.2d 244, 245-246 (Del. Super. 1970).
The Superior Court dismissed the case, finding that the prosecutor's transfer was deliberate and arbitrary. Id. at 247.
The court was particularly troubled by the fact that the case was not transferred to cure some difficulty with discovery, gathering evidence or even due to the unavailability of prosecutors or crowded dockets. Id.
Rather, the prosecutor transferred the case, over the defendant's request for trial, as a conscious prosecution choice, which gave "the impression, perhaps unwarranted, of unfair manipulation of the criminal process." Id.
The Supreme Court noted as follows:
". . . We agree with the Court below in its conclusion that other types of prejudice may be sufficient to move the exercise of its discretion under Rule 48(b): the unexplained commencement of a new prosecution long after a dismissal by the State of the same charge in another court; the anxieties suffered by a defendant as the result of delay and uncertainty in duplicative prosecutions against him; the notoriety suffered by a defendant and his family as the result of repeated commencement of prosecutions for the same offense; the expenses, legal and otherwise, attendant upon a subsequent renewal in another court of a dismissed prosecution. These and like considerations may constitute sufficient "prejudices" to justify the exercise of the Court's discretion under Rule 48(b)."