Persons committed or held to bail; preliminary hearing; failure of county attorney to file information; written statement required; power of court.
It shall be the duty of the county attorney of the proper county to inquire into and make full examination of all the facts and circumstances connected with any case on preliminary examination, as provided by law, touching the commission of any offense wherein the offender shall be committed to jail, or become recognized or held to bail. If the prosecuting attorney shall determine in any such case that an information ought not to be filed, he shall make, subscribe, and file with the clerk of the court a statement in writing, containing his reasons, in fact and in law, for not filing an information in such case; and such statement shall be filed at and during the term of court at which the offender shall be held for his appearance; Provided, in such case such court may examine the statement, together with the evidence filed in the case, and if, upon such examination, the court shall not be satisfied with the statement, the county attorney shall be directed by the court to file the proper information and bring the case to trial.
Source:Laws 1885, c. 108, § 6, p. 398; R.S.1913, § 9067; C.S.1922, § 10091; C.S.1929, § 29-1606; R.S.1943, § 29-1606.
After a court approves the dismissal without prejudice of information under this section, the State is free to file new information that includes additional charges. State v. Al-Sayagh, 268 Neb. 913, 689 N.W.2d 587 (2004).
The provisions of this section include the requirement of approval by the trial court before an information may be dismissed. State v. Sanchell, 191 Neb. 505, 216 N.W.2d 504 (1974).
Obiter dictum in In re Interest of Moore, 186 Neb. 67, 180 N.W.2d 917, deleted to avoid possible misconstruction in conflict with this section. In re Interest of Moore, 186 Neb. 158, 180 N.W.2d 919 (1970).
Given gravity of original offense, state judge did not abuse his discretion in requiring that a proper probation revocation information be substituted for information which prosecution sought to dismiss. Kartman v. Parratt, 535 F.2d 450 (8th Cir. 1976).
Habitual criminal statute is not unconstitutional on grounds it gives county attorney selectivity in applying it, nor because it punishes a status rather than an act. Martin v. Parratt, 412 F.Supp. 544 (D. Neb. 1976).
State judge's refusal to dismiss probation violation charge except on condition county attorney file new charges did not deny probationer due process on ground that such judge, at final revocation hearing, was not a neutral and detached decision maker. Kartman v. Parratt, 397 F.Supp. 531 (D. Neb. 1975).