STATE OF IOWA vs. PAUL ANTHONY SPURGIN

The State filed complaints against Paul Spurgin accusing him of

committing several crimes in Monroe County. The Monroe County Attorney

moved to disqualify himself because he had represented Spurgin in civil matters,

was representing Spurgin’s father in “present pending matters,” and had

represented Spurgin’s brother in “the recent past.” The district court granted the

motion and “disqualified [the Monroe County Attorney] from prosecuting the

above-captioned cases.” The court appointed the Lucas County Attorney to

prosecute the charges.

The disqualified Monroe County Attorney notified the court that the Lucas

County Attorney would not be able to assist in the matter. He sought the

appointment of the Appanoose County Attorney. Before the court issued a

ruling, the disqualified Monroe County Attorney filed a trial information charging

Spurgin with five offenses. Spurgin moved to dismiss the trial information “with

prejudice.”1 He cited the county attorney’s disqualification and asserted the trial

information was not filed “in the manner required by law in violation of Iowa Rule

of Criminal Procedure 2.11(6)(c)(2).” Meanwhile, the district court appointed

someone else to prosecute the charges. Following a hearing on Spurgin’s

1 The county attorney subsequently filed a motion to amend the trial information to add a sixth count. The district court approved the amendment, but the motion to dismiss and the court’s ruling on the motion only address the five counts in the original trial information.

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motion, the district court dismissed all counts in the original trial information with

prejudice. The district court stated:

Pursuant to Iowa Rule of Criminal procedure 2.33(1), Counts II, IV, and V are dismissed, as they are serious misdemeanors. Specifically, the Court finds the Monroe County Attorney did not have the authority or the capacity to act when he filed the trial information on December 18, 2015. Counts II, IV, and V are hereby dismissed with prejudice, those counts being serious misdemeanors. The Court further finds that good cause in this particular case does not exist for the State to file a trial information beyond the forty-five days, and Counts I and III are hereby dismissed. Accordingly, Counts I and III are hereby dismissed with prejudice, given that no good cause exists



The State appealed.

II. Dismissal with Prejudice

The State “does not contest the conclusion that ‘the Monroe County

Attorney did not have the authority or the capacity to act’ regarding this case.”

The State also concedes dismissal of the trial information without prejudice would

have been appropriate. However, in the State’s view, “the Iowa Rules of Criminal

Procedure do not authorize the district court to dismiss a trial information with

prejudice.” The argument goes as follows: the district court’s dismissal ruling

was in fact based on rule 2.112 rather than rule 2.333 and rule 2.11 requires

2 Iowa Rule of Criminal Procedure 2.11(6) authorizes dismissal of an indictment or information “[i]f it appears from the indictment or information and the minutes of evidence that the particulars stated do not constitute the offense charged in the indictment or information, or that the defendant did not commit that offense or that a prosecution for that offense is barred by the statute of limitations.” The rule further states, (c) A motion to dismiss the information may be made on one or more of the following grounds: (1) When the minutes of evidence have not been filed with the information. (2) When the information has not been filed in the manner required by law.

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dismissal without prejudice, allowing the State to refile the charges. Alternatively,

the State contends that, if the court did indeed rely on rule 2.33, the court abused

its discretion because the State was not afforded notice of this rule and, in any

event, the language of the rule was inapplicable.

The State’s assertion that the district court’s dismissal was really a

dismissal under rule 2.11 is easily resolved. The district court cited rule 2.33(1)

in dismissing the misdemeanor counts and applied the language of Rule

2.33(2)(a) in dismissing the felony counts. Accordingly, we conclude the court’s

dismissal was not under rule 2.11 but under rule 2.33, and we need not address

the State’s argument that rule 2.11 requires a dismissal without prejudice.

We turn to the State’s assertion that it lacked notice of the court’s intent to

rely on rule 2.33. Although Spurgin cited rule 2.11 in his motion to dismiss, he

did not exclusively rely on the terms of that rule in seeking dismissal. At the (3) When the information has not been approved as required under rule 2.5(4). Iowa R. Crim. P. 2.11(6). 3 Rule 2.33 provides in pertinent part: (1) Dismissal generally; effect. The court, upon its own motion or the application of the prosecuting attorney, in the furtherance of justice, may order the dismissal of any pending criminal prosecution, the reasons therefor being stated in the order and entered of record, and no such prosecution shall be discontinued or abandoned in any other manner. Such a dismissal is a bar to another prosecution for the same offense if it is a simple or serious misdemeanor; but it is not a bar if the offense charged be a felony or an aggravated misdemeanor. (2) Speedy trial. It is the public policy of the state of Iowa that criminal prosecutions be concluded at the earliest possible time consistent with a fair trial to both parties. Applications for dismissals under this rule may be made by the prosecuting attorney or the defendant or by the court on its own motion. a. When an adult is arrested for the commission of a public offense . . . and an indictment is not found against the defendant within 45 days, the court must order the prosecution to be dismissed, unless good cause to the contrary is shown or the defendant waives the defendant’s right thereto.



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hearing on the motion, he also cited rule 2.33(2)(a) setting forth the forty-five day

speedy indictment deadline. From the outset, the State was placed on notice

that Spurgin intended to seek a dismissal with prejudice. Specifically, Spurgin’s

motion requested, “That upon hearing, the Court should determine that the Trial

Information in the above matter should be dismissed with prejudice.” At the

hearing on the motion, Spurgin’s attorney forcefully argued for a dismissal with

prejudice, as follows:

This is a situation where the prosecutor intentionally disregarded a Court order and obtained an approval on the trial information mere days before the running of the forty-five day[] [speedy indictment deadline]. It is our position that that main difference, not negligent but intentional, and not asking the Court for some sort of authority with the defense opportunity to be heard on that issue, requires that the Court dismiss the trial information with prejudice. We conclude the State had notice of the potential for dismissal under rule 2.33

and of the potential for dismissal with prejudice. We turn to the merits of the

court’s ruling.

As noted, the court dismissed the misdemeanor counts of the trial

information under rule 2.33(1). The district court reasoned, “once an order is

entered saying you’re disqualified, it means what is says: You’re disqualified.”

This ruling does not evince an abuse of discretion. See State v. Brumage, 435

N.W.2d 337, 341 (Iowa 1989) (setting forth the standard of review under rule

2.33(1)). The rule explicitly authorizes action on the court’s own motion.

Additionally, the “in the furtherance of justice” language is broad enough to

encompass dismissal based on the conceded disqualification of the filing

attorney. Finally, the rule mandates dismissal with prejudice.

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In dismissing the two felony counts, the district court cited the language of

rule 2.33(2)(a)—the speedy indictment rule. See Ennenga v. State, 812 N.W.2d

696, 701 (Iowa 2012) (stating rule requires “dismissal if an indictment is not

found within forty-five days of arrest unless good cause for the failure is shown”

and “[a] dismissal for failure to provide a speedy trial is an ‘absolute dismissal, a

discharge with prejudice, prohibiting reinstatement or refiling of an information or

indictment charging the same offense.’” (citation omitted)). We discern no error

in this ruling. See State v. Tarbox, 739 N.W.2d 850, 852 (Iowa 2007) (setting

forth standard of review). As Spurgin states, “The Trial Information filed on

December 18, 2015, was void and lacked legal effect because [the county

attorney] did not have the authority to file the Trial Information.”

In summary, we conclude (A) the court’s ruling was made under the

auspices of rule 2.33 rather than 2.11, (B) the State had notice of the potential

applicability of rule 2.33, (C) Spurgin sought dismissal with prejudice from the

outset, (D) the district court had authority to dismiss the misdemeanor counts

“upon its own motion” under rule 2.33(1), (E) the prosecutor’s disqualification

from prosecuting the case was grounds for dismissal of the misdemeanor counts

“in furtherance of justice” under rule 2.33(1), and (F) the court had authority to

dismiss the felony counts with prejudice for violation of the speedy indictment

deadline under rule 2.33(2)(a), again because the prosecutor lacked authority to

file the trial information.