State v. Butler ( 2021 )

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STATE OF CONNECTICUT v. CARLTON BUTLER
(AC 43812)
Prescott, Alexander and Bishop, Js.
Syllabus
The defendant, against whom the charges of the crimes of risk of injury to
a child and breach of the peace in the second degree were dismissed
following his completion of a statutory (§ 54-56l) two year, supervised
diversionary program for persons with psychiatric disabilities, appealed
from the judgment of the trial court granting the state’s motion to
open the judgment of dismissal. As a condition to his admission to the
diversionary program, the defendant agreed that he would not have
any contact with minors, which included volunteering or working with
minors in any capacity and visiting any areas that were frequented by
minors. After the trial court received a report stating that the defendant
had successfully completed all of the counseling sessions required by
the program, it held a hearing to address the dismissal of the charges.
At that hearing, the state argued that the court should not grant a
dismissal in light of a final progress report, issued by the Court Support
Services Division, which stated that the defendant had not completed
the program satisfactorily, and a letter from the defendant’s probation
officer, which was attached to the report and indicated that the officer
had received information from an anonymous source that the defendant
recently had volunteered for a YMCA trip that involved minors. The
officer stated that he was unable to verify the accuracy of this claim
but that the director of a local YMCA had informed him that the defendant
had unsuccessfully applied for three employment positions as a camp
counselor while he was enrolled in the diversionary program. Addition-
ally, the officer’s letter stated that the defendant had failed to report to
probation for his last scheduled appointment. The state did not request
a continuance or a stay to conduct further investigation into these
allegations nor did it offer any testimony or other evidence to corrobo-
rate the defendant’s purported lack of success in completing the pro-
gram. In response to the state’s argument, defense counsel informed
the trial court that the defendant’s father, who he claimed drove the
defendant everywhere, confirmed that the defendant had not been on
a YMCA trip and that he had not driven the defendant to the YMCA to
apply for any jobs. The trial court dismissed the case and, the following
day, the state filed a motion to open the dismissal, claiming that it had
obtained additional information demonstrating that the defendant had
not successfully completed the diversionary program, including video
footage of the defendant working at a summer camp for children. The
trial court granted the state’s motion, concluding that the dismissal was
erroneously granted because it was based on false information, and the
defendant appealed to this court. Held that the trial court could not
properly entertain or grant the state’s motion to open, as it lost subject
matter jurisdiction once it dismissed all charges, and, accordingly, the
state’s only available means to overturn the trial court’s decision was
through the appeal process, which it elected not to pursue: in the absence
of any overriding statutory or constitutional provision, a criminal court’s
common-law jurisdiction over a criminal proceeding ends after that
court renders a final disposition of all charges contained in the informa-
tion, and, in the present case, the trial court rendered a final judgment
when it dismissed the charges against the defendant, and it failed to
provide a legal basis for its exercise of power over the motion to open
following such judgment; moreover, the statute (§ 52-212a) that provides
that a judgment rendered in the Superior Court may be opened if a
motion to open is filed within four months of the date on which the
judgment was rendered is expressly limited to civil judgments, and our
Supreme Court in State v. McCoy (331 Conn. 561) fully abrogated any
suggestion by that court in State v. Wilson (199 Conn. 417) that the four
month rule also applied in the context of final criminal judgments;
furthermore, the state failed to satisfy the requirements of the civil rule
that a court has intrinsic powers to open a judgment obtained by fraud,
as the trial court did not find that defense counsel’s representations
were made with an intent to deceive and it did not indicate in granting
the motion to open that it was doing so on the basis that the judgment
of dismissal was obtained by fraud; additionally, the judgment of dis-
missal was not analogous to a new prosecution of a defendant on the
same charges following a dismissal predicated on the entry of a nolle
prosequi, as a judgment following a nolle prosequi is made without
prejudice, and public policy did not support the opening of the judgment
in the present case, as significant liberty and finality of judgment inter-
ests attached when the trial court granted an unconditioned judgment
of dismissal and the defendant agreed to take on certain conditions and
burdens associated with the program in exchange for the statutory
assurance that, if he completed the program, the charges would be
erased, and he lost those statutory rights when the trial court opened
the judgment through a procedure outside of the statutory scheme.
(One judge dissenting)
Argued May 24—officially released December 7, 2021
Procedural History
Information charging the defendant with the crimes
of risk of injury to a child and breach of the peace in
the second degree, brought to the Superior Court in
the judicial district of Ansonia-Milford, geographical
area number five, where the court, Brown, J., granted
the defendant’s application to participate in a statutorily
authorized diversionary program; thereafter, the court,
McShane, J., rendered judgment dismissing the infor-
mation; subsequently, the court, McShane, J., granted
the state’s motion to open the judgment of dismissal,
from which the defendant appealed to this court.
Reversed; judgment directed.
Kenneth Rosenthal, for the appellant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Margaret E. Kelley, state’s
attorney, Rebecca A. Barry, supervisory assistant state’s
attorney, and Mary A. SanAngelo, senior assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. This appeal requires us to determine,
as a matter of first impression, whether a criminal court
has the power to open a judgment of dismissal rendered
by the court after concluding that a defendant satisfac-
torily has completed a statutorily authorized diversion-
ary program. Specifically, the defendant, Carlton Butler,
appeals from the judgment of the trial court granting
the state’s motion to open a judgment of dismissal that
the court rendered following a determination that he
satisfactorily had completed a two year, supervised
diversionary program for persons with psychiatric disa-
bilities in accordance with General Statutes § 54-56l.1
The defendant claims that the trial court lacked the
power to open the judgment of dismissal once rendered
and that, by doing so, it violated important liberty and
finality of judgment interests. The state responds that
the trial court possessed both subject matter jurisdic-
tion and the authority to open the judgment of dismissal
because the state filed its motion to open the judgment
‘‘within four months [of rendering the judgment of dis-
missal] and the dismissal was predicated on a material
misrepresentation made to the court.’’ We agree with
the defendant that the court lacked the power to grant
the state’s motion to open the judgment. Accordingly,
we reverse the judgment of the trial court.
The procedural history relevant to our consideration
of the present appeal is not in dispute. In June, 2017,
the defendant was charged with risk of injury to a child
in violation of General Statutes § 53-21 and breach of
the peace in the second degree in violation of General
Statutes § 53a-181. The charges arose from an incident
that allegedly occurred at a McDonald’s restaurant in
Derby. According to the state, an employee of the res-
taurant entered the restaurant’s public bathroom and
discovered the defendant in a bathroom stall with a
twelve year old boy. The employee observed that the
boy had his pants down and that the defendant was
standing behind and to the side of the boy with his
own shorts down and his genitals exposed. When the
defendant was contacted by the police, he initially
denied being at the restaurant but later claimed that he
was helping the boy go to the bathroom.
In August, 2017, the defendant filed an application
to participate in the supervised diversionary program
for persons with psychiatric disabilities as set forth in
§ 54-56l.2 On October 2, 2017, on confirmation from the
Court Support Services Division that the defendant was
eligible for the program and after consideration of the
recommended treatment plan, the court, Brown, J.,
granted the defendant’s application and referred the
defendant to the Court Support Services Division for
supervision in the program. Prior to granting the appli-
cation, the court canvassed the defendant, who
acknowledged that he understood that among the con-
ditions that would be imposed on him if he was allowed
to participate in the diversionary program was a require-
ment that he have no contact with minors, which
included not volunteering or working in any capacity
with any minors and not going to any areas frequented
by minors. The defendant indicated that he was willing
to abide by all conditions. The court continued the case
until October 2, 2019.
Over the next two years, the defendant struggled with
the counseling requirements under the program, which
resulted in several additional court appearances. Specif-
ically, on October 4, 2018, the defendant appeared
before the court, McShane, J., because he did not suc-
cessfully complete a mental health program at Connec-
tions, Inc., and was discharged from the program. The
defendant argued that the probation officer assigned
to oversee his case believed that a different program
offered at the Sterling Center ‘‘would be a better fit for
him in consideration of his mental health issues,’’ and
he asked the court to allow him to continue in the
diversionary program. The court noted that the defen-
dant otherwise appeared to be in compliance with the
conditions imposed under the program but ordered that
it would need to see a compliance report and to conduct
a follow up hearing. Several follow up hearings ensued
at which problems regarding the defendant’s atten-
dance at counseling sessions were discussed and, ulti-
mately, resolved.
On June 24, 2019, the defendant returned to court,
at which time the court indicated that it had received
a report that the defendant successfully had completed
all of his sessions at the Sterling Center. The court
congratulated the defendant on the record, stating: ‘‘We
get very few success stories here. When the lawyer
brought out a letter and I saw it was a long one, I went,
well, this isn’t going to be good, but it’s just the opposite.
It was a great letter.’’ The court continued the case to
October 2, 2019, for possible dismissal.
The Court Support Services Division issued a final
progress report dated September 25, 2019, which indi-
cated that ‘‘[t]he [d]efendant has not satisfactorily com-
pleted the assigned program . . . .’’ Attached to the
report was a letter from the defendant’s probation offi-
cer. According to that letter, the probation officer had
received information from an anonymous source at the
end of August, 2019, that the defendant recently had
volunteered for a YMCA trip that involved minors. The
probation officer attempted to investigate but was
unable to verify the accuracy of the information pro-
vided by the anonymous source. The officer neverthe-
less indicated in his letter that he had learned that the
defendant was not allowed to enter YMCAs in Water-
bury and Torrington ‘‘due to separate undisclosed inci-
dents’’ and that the director at the Plainville YMCA had
informed him that the defendant ‘‘had unsuccessfully
applied for three separate employment positions as a
‘camp counselor’ on [March 15, 2019].’’ The officer also
stated in his letter that the defendant had failed to report
to probation on September 18, 2019, as required, and
that, as of the date of the letter, the defendant ‘‘has
failed to contact this officer and his whereabouts are
unknown.’’
At the October 2, 2019 hearing, the court began by
noting that ‘‘[t]he case today is on for a potential dis-
missal date.’’ The state, relying on the statements and
unsubstantiated allegations contained in the letter
attached to the final progress report as well as the
factual allegations underlying the criminal charges
pending against the defendant, argued that the court
should not grant a dismissal of those charges.3 The state
did not request a continuance or stay of the hearing to
conduct a further investigation into the allegations in
the report, and it offered no testimony, affidavits, or
any additional documentary evidence to corroborate
the defendant’s purported lack of success in completing
the diversionary program or his lack of compliance
with conditions imposed by the court in granting the
defendant’s application for the program.
Defense counsel, in response to the state, argued that
he also found the letter attached to the final report
concerning ‘‘but for different reasons than the state.’’
He continued: ‘‘[The defendant] does not own a driver’s
license. He does not own a car. His father drives him
everywhere. His father is present here in the courtroom
and is willing to come up and talk to Your Honor. Your
Honor, I talked to [the defendant’s] father who stated
that [the defendant] has never gone on a YMCA trip as
a volunteer. He’s also indicated to me that he’s never—
they live in Waterbury. He’s also indicated to me that
he’s never driven [the defendant] to the Plainville YMCA
to apply for a job.
‘‘Secondly, Your Honor, the reason why [the defen-
dant] is not allowed at the YMCAs is because prior to
this case—prior to the supervised Diversionary Pro-
gram being granted, he was going to the YMCA. While
the case was pending, he was going to the YMCA. At
that point someone notified the YMCA of his arrest.
They told him he was no longer allowed back. So I
found it concerning in this letter that some of this infor-
mation is very dated. Okay? And secondly, based on
his father’s own representation to me, false.
‘‘It’s true, [the defendant] will admit that he did not
go to his last probation meeting on September [18,
2019]. [The defendant] forgot about it. After two years
it’s the one and only one he’s ever missed. [The defen-
dant] is attending Goodwin College, however I know
[the defendant] likes to tell people he’s living in East
Hartford, but after speaking with his father, he still
lives at home with his father. His father drives him to
Goodwin College. I know in chambers, Your Honor, I
had indicated that [the defendant] did apply for an adult
counselor position, but that was through Easter Seals.
That was not through the YMCA. So we don’t even know
if this YMCA application is [the defendant] himself. [The
defendant’s] father would probably tell Your Honor,
because he’s told me that he’s never driven [the defen-
dant] to the Plainville YMCA. To his knowledge, [the
defendant] has never applied to be—through the YMCA
for anything. He’s never, to his knowledge, ever went
on a trip with minors. [The defendant’s] only mode of
transportation is through his father. He’s never taken
his father’s car without permission. [The defendant]
doesn’t own a car. He doesn’t have a driver’s license.
‘‘So for those reasons, Your Honor, I find this letter
very concerning because a lot of it—it’s a lot of allega-
tions that’s refuted by [the defendant’s] own father,
who—I’ll be honest with you, through the course of
knowing [the defendant], he’s a very honest man, would
not lie on his son’s behalf. Your Honor, so essentially
the only thing that is a fact and is true is that [the
defendant] missed his last probation meeting on Sep-
tember 18, however the probation officer left a card
for [the defendant] to go on October 1. [The defendant]
showed up on October 1. [The defendant] went to the
meeting with the officer, and the officer said that [the
defendant] got agitated. Well, [the defendant] got agi-
tated because his probation officer told him that he
was going to send in a bad report, and that [the defen-
dant] was not going to successfully complete the pro-
gram.
‘‘I think up to [this] point, Your Honor, [the defendant]
has fulfilled everything on the Supervised Diversionary
Program. He paid for the Sterling Center out of pocket.
He’s on disability. It was a financial hardship for him
and his father. The allegations of him going to the YMCA
during the pendency of him being on the Supervised
Diversionary Program is unfounded, unfounded and
refuted by the only person he can get a ride from.
For those reasons, Your Honor, I think [the defendant]
should have a successful dismissal on this program.’’
Defense counsel did not call the defendant’s father to
testify on the record regarding the representations that
he had made or offer any other evidence to the court
at the hearing.
After hearing from the defense, the court asked
whether the state had anything further to present. The
state did not ask for an opportunity to question the
father under oath regarding defense counsel’s represen-
tations and, again, did not request a continuance of the
hearing. The court, therefore, had no testimony from
any witnesses under oath or any evidence introduced
by the state to form a basis to sustain the objection to
the dismissal. Rather, the state briefly responded: ‘‘I
appreciate that counsel is arguing that there’s no evi-
dence that the defendant did what’s alleged in the proba-
tion report, however I think that, as the court knows,
while his father may be an honest person, that’s all well
and good, but I’m sure [the defendant] can find his way
around if need be. So my concern is, how did [the
defendant] get to that McDonald’s on the day in ques-
tion. This goes back to June, 2017. My concern is for
that young boy, who was there in the stall with [the
defendant], and all the young boys out here. So I would
ask Your Honor not to dismiss the charges.’’ Rather
than presenting evidence to support its objection to
the dismissal, the state directed its objection at the
argument of counsel and the nature of the offense.
After hearing from the state, the court immediately
rendered the following oral ruling: ‘‘The court has con-
sidered the argument of counsel and actually, the state’s
argument, although very well articulated, is misplaced
in that that objection, and I’m sure it was at the time,
was forwarded or made by [the attorney] representing
the [state] at that time, but nevertheless, the judge
granted the program. The fact that the defendant
switched to Sterling Program is actually in his favor.
That is a much more difficult program and a much
more—one of better reputation than the other program
[that] was originally recommended.
‘‘So what the court has before it is an individual who
missed his last appointment, and the fact that this case
has been pending since June of 2017, with no arrests
certainly speaks in defendant’s behalf. I certainly under-
stand the state’s concern with regards to the defendant
working as a camp counselor, but I am concerned of
the fact that this was an anonymous tip that was not
looked into by the Office of Adult Probation other than
just to receive it without making phone calls. It doesn’t
appear as though any of it is in fact true. The defendant
had numerous appointments during the way, he had
his bumps along the way and ended up making those.
You know, it’s something that he applied for back on
October [2, 2017], with the understanding that if he did
what he was supposed to do, it would be dismissed. He
did what he was supposed to do. The case is therefore
dismissed.’’ The state made no further statements on
the record.4
The following day, the state filed a ‘‘motion to reopen
dismissal.’’ According to the state, information had
come to the state’s attention subsequent to the court
having rendered the judgment of dismissal that demon-
strated that the defendant had not completed the diver-
sionary program successfully, and the state asked the
court to open the case for further prosecution. In sup-
port of its motion, the state asserted that the court had
relied on representations by defense counsel ‘‘that have
proven false.’’ It further asserted that ‘‘[t]here is footage
of the defendant working at a summer camp in Massa-
chusetts that was taken this summer.’’ The state indi-
cated that the Office of Adult Probation would provide
the court with a ‘‘more detailed report as to the parties
that describes the defendant’s noncompliance with the
court set conditions for [the diversionary program].’’
Finally the state asserted that the court ‘‘maintains
authority to reopen this case based upon State v. John-
son, 301 Conn. 630, 643, 26 A.3d 59 (2011); Tyson v.
Commissioner of Correction, 155 Conn. App. 96, 105,
109 A.3d 510, cert. denied, 315 Conn. 931, 110 A.3d 432(2015); [and] State v. O’Bright, 13 Conn. App. 732, 539
A.2d 161 (1988).’’
The defendant filed an objection to the state’s motion.
He argued that the cases relied on by the state were
inapposite to the court’s consideration of whether it
properly could open a dismissal of his criminal charges.
The defendant took the position that such a dismissal
could not be set aside except after review by an appel-
late court on appeal. The defendant also argued that
the state’s motion to open was ‘‘against public policy
and a dangerous precedent.’’ According to the defen-
dant, the state was asking the court ‘‘to endanger all
current and past defendants who used a diversionary
program but are still within the statute of limitations
for their alleged crimes.’’ The defendant contended that
opening a dismissal under these circumstances is partic-
ularly troublesome because a defendant must agree
to the tolling of the statute of limitations in order to
participate in a diversionary program and never is
advised that, after a dismissal of charges is obtained,
the dismissal potentially could be opened at a later date
and the charges reinstated.
The court held a hearing on the motion to open on
October 15, 2019. At the hearing, the court entered as
court exhibits (1) an ‘‘addendum’’ to the letter that
was attached to the final report from the defendant’s
probation officer5 and (2) a five page report dated Octo-
ber 4, 2019, from the probation officer to the supervisory
assistant state’s attorney detailing the officer’s supervi-
sion of the defendant over the entire duration of the
program and voicing the officer’s concern that the
defendant ‘‘continues to seek contact with minors and
actively engages in deceptive behavior to conceal such
contact.’’ With respect to the new information con-
tained in the report, the officer stated: ‘‘Unfortunately,
this officer was unable to communicate this information
to the court prior to the dismissal of the Supervised
Diversionary Program due to the time frame of the
information being confirmed.’’6
Following argument, the court granted the state’s
motion to open. Although the court noted on the papers
only that the ‘‘[d]ismissal was erroneous,’’ it signed a
copy of the transcript of the hearing at which it orally
provided a more fulsome explanation for its ruling. In
relevant part, the court stated: ‘‘[L]ook, I don’t know a
lot about subject matter jurisdiction. I know I looked
at the cases that the state has provided with and none
of them seem to be quite on point. But I also know
what the right thing to do is. And the right thing to do
in this particular case is to reopen this case and have
the defendant—and I say and have the defendant face
the charges. I say that because this dismissal was
granted under erroneous grounds. The dismissal was
false, with false information. And, [defense counsel],
nobody has put any dispersions to you on there, but
I—and I’m not going to ask for—elicit a response, but it
is wrong. It is wrong the defendant received a dismissal.
Just as if it was a clerical error, I will say this was
an error in that I had none of this information before
me. And, you know, this isn’t an operating under sus-
pension. The public policy, I mean, involved here is
more significant to that.’’7 (Emphasis added.) Although
the court indicated that the dismissal was granted on
the basis of erroneous information, the court made no
express finding that the state had established by clear
and convincing evidence any fraud on the court.8
Rather, as reflected in the emphasized language, the
court’s decision to vacate the dismissal appears to turn
on the serious nature of this offense and not whether
the state’s ‘‘motion to reopen’’ was the proper proce-
dure. This appeal followed.9
The defendant claims on appeal that the trial court
lacked the power to open and set aside the uncondi-
tional dismissal of his criminal charges following his
completion of the diversionary program and, in so
doing, deprived him of significant liberty and finality
of judgment interests. The state responds that the trial
court possessed both the subject matter jurisdiction
and the authority to open the judgment,10 and properly
did so under the circumstances of this case. We agree
with the defendant that the trial court lost subject mat-
ter jurisdiction in this matter once it rendered the judg-
ment of dismissal. Accordingly, it improperly granted
the state’s motion to open and reinstated the criminal
charges against the defendant.
We begin with our standard of review. Whether the
trial court had the power to consider and grant the
state’s motion to open after the court had dismissed all
charges pending against the defendant raises a question
of law over which we exercise plenary review. See
Tarro v. Mastriani Realty, LLC, 142 Conn. App. 419,
431, 69 A.3d 956 (‘‘[a]ny determination regarding the
scope of a court’s subject matter jurisdiction or its
authority to act presents a question of law over which
our review is plenary’’), cert. denied, 309 Conn. 912, 69
A.3d 308 (2013), and cert. denied, 309 Conn. 912, 69
A.3d 309 (2013).
As we previously indicated, the question before us
is one of first impression. The existing legal landscape
regarding the jurisdiction and authority of our criminal
courts is limited primarily to discussions of the criminal
court’s power to act postconviction. Because there is
scant authority discussing the criminal court’s power
to act on motions or otherwise following an outright
dismissal of criminal charges, we look first to our
existing jurisprudence as it pertains to the jurisdiction
of our criminal courts generally. We then examine civil
law analogs and their applicability in the criminal con-
text. Next, we review relevant and persuasive authority
from other jurisdictions. Finally, we turn to a policy
discussion, including due consideration of the parties’
varied legal interests. Ultimately, we conclude that the
court improperly granted the state’s motion to open
because, in the absence of any codified authorization,
either express or clearly implied, a criminal court can-
not take further action in a criminal matter once there
has been a complete and final resolution of all pending
charges, which would include the judgment of dismissal
rendered in the present case.
I
GENERAL BACKGROUND
‘‘This state has a unified court system. Thus, all crimi-
nal and civil matters, including juvenile matters, fall
within the subject matter jurisdiction of the Superior
Court.’’ (Internal quotation marks omitted.) State v. Fer-
nandes, 300 Conn. 104, 106 n.3, 12 A.3d 925, cert. denied,
563 U.S. 990, 131 S. Ct. 2469, 179 L. Ed. 2d 1213 (2011).
‘‘The Superior Court is a constitutional court of general
jurisdiction. In the absence of statutory or constitu-
tional provisions, the limits of its jurisdiction are
delineated by the common law.’’ (Emphasis added;
internal quotation marks omitted.) State v. Ramos, 306
Conn. 125, 133–34, 49 A.3d 197 (2012). ‘‘The Superior
Court’s authority over criminal cases is established by
the proper presentment of the information . . . which
is essential to initiate a criminal proceeding.’’ (Internal
quotation marks omitted.) State v. Daly, 111 Conn. App.
397, 401–402, 960 A.2d 1040 (2008), cert. denied, 292
Conn. 909, 973 A.2d 108 (2009); see also Reed v. Reincke,
155 Conn. 591, 598, 236 A.2d 909 (1967) (‘‘[a]rrest and
detention are primarily for security purposes and not
for the purpose of conferring jurisdiction’’).
At common law, ‘‘a trial court possesse[d] the inher-
ent power to modify its own judgments during the term
at which they were rendered. . . . During the continu-
ance of a term of court the judge holding it ha[d], in a
sense, absolute control over judgments rendered; that
is, he can declare and subsequently modify or annul
them. . . . Under the [common-law] rule, a distinction
[was] drawn between matters of substance and clerical
errors; the distinction being that mere clerical errors
may be corrected at any time even after the end of the
term. . . . But [i]n the absence of waiver or consent
of the parties, a court [was] without jurisdiction to
modify or correct a judgment in other than clerical
respects after the expiration of the term of the court
in which it was rendered.’’ (Citations omitted; internal
quotation marks omitted.) State v. Wilson, 199 Conn.
417, 436–37, 513 A.2d 620 (1986).11
Regardless, that particular rule is no longer part of
our common law. Courts previously had ‘‘interpreted
the word ‘term’ as used in the [common-law] rule that
a judgment may not be modified in substance after the
term at which it was rendered to mean ‘sessions’ of
court as that period was defined in earlier enactments
of General Statutes § 51-181. . . . The present version
of . . . § 51-181, however, makes no reference to ‘ses-
sions’ of court, and provides simply that ‘[t]he superior
court shall sit continuously throughout the year, at such
times and places and for such periods as are set by
the chief court administrator.’ ’’ (Citations omitted.) Id.,
437. Accordingly, even if once applicable in criminal
cases, the common-law rule regarding a court’s ‘‘ ‘abso-
lute control over judgments’ ’’ during the continuance
of the term in which the judgment was rendered; id.,
436; has been superseded or rendered inoperable by
statutory changes and, thus, does not factor into our
consideration of the jurisdiction of the criminal court
as it currently exists under our common law. See also
State v. Luzietti, 230 Conn. 427, 432 n.6, 646 A.2d 85(1994) (recognizing that criminal court’s common-law
jurisdiction to vacate judgment during ‘‘ ‘term’ ’’ in
which it had been rendered ‘‘no longer has vitality in
this state’’).
A bright-line rule exists regarding a criminal court’s
continuing jurisdiction in a criminal matter following
a conviction. ‘‘It is well established that under the com-
mon law a trial court has the discretionary power to
modify or vacate a criminal judgment before the sen-
tence has been executed.’’ (Emphasis added; internal
quotation marks omitted.) State v. Waterman, 264
Conn. 484, 491, 825 A.2d 63 (2003). This is because
‘‘[t]he jurisdiction of the sentencing court terminates
when the sentence is put into effect, and that court
may no longer take any action affecting the sentence
unless it has been expressly authorized to act. . . .
The legislature has granted the trial courts continuing
jurisdiction to act on their judgments [in criminal mat-
ters] after the commencement of sentence under a lim-
ited number of circumstances.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
Id. For example, General Statutes §§ 53a-29 through
53a-34 authorize the court to modify the terms of proba-
tion even after a sentence is imposed. General Statutes
§ 52-270 grants the court jurisdiction to hear a petition
for a new trial filed postsentence. General Statutes
§ 53a-39 allows courts, under prescribed circum-
stances, after a hearing, and for good cause shown, to
reduce a sentence, to order a defendant discharged,
or to place a defendant on probation or conditional
discharge. See also id., 492. No statutory provisions
exist, however, that expand the existing common-law
jurisdiction of our criminal courts or expressly permit a
court to reinstate criminal charges after it has dismissed
them. In the absence of any overriding statutory or
constitutional provision, a criminal court’s common-
law jurisdiction over a criminal proceeding ends after
that court renders a final disposition of all charges
contained in the information, whether by an adjudica-
tion of the merits or by dismissal.12 Moreover, although
well delineated legal parameters do exist with respect
to the opening of civil judgments, there are no analo-
gous rules of practice or statutory provisions that delin-
eate the scope of the court’s power to open a judgment
in a criminal case. Because the state argues that existing
rules applicable to civil judgments nonetheless should
govern the outcome of the present appeal, we turn to
a discussion of these rules and their applicability.
II
CIVIL LAW ANALOGS
A
‘‘Four Month’’ Rule
Under our common law, ‘‘[t]rial [c]ourts have an
inherent power to open, correct and modify . . . [a]
civil judgment . . . and, therefore, have general sub-
ject matter jurisdiction to adjudicate motions to open.’’
(Emphasis added; internal quotation marks omitted.)
Wolfork v. Yale Medical Group, 335 Conn. 448, 468–69,
239 A.3d 272 (2020); id., 469 and n.12 (recognizing dis-
tinction between civil and criminal judgments). ‘‘[Gen-
eral Statutes §] 52-212a provides in relevant part: Unless
otherwise provided by law and except in such cases
in which the court has continuing jurisdiction, a civil
judgment or decree rendered in the Superior Court may
not be opened or set aside unless a motion to open or
set aside is filed within four months following the date
on which it was rendered or passed. . . . Practice
Book § 17-43 contains similar language [limiting its
applicability to civil matters]. Courts have interpreted
the phrase, [u]nless otherwise provided by law, as pre-
serving the common-law authority of a court to open
a judgment after the four month period. . . . It is well
established that [c]ourts have intrinsic powers, inde-
pendent of statutory provisions authorizing the open-
ing of judgments, to vacate [or open] any judgment
obtained by fraud, duress or mutual mistake.’’ (Cita-
tion omitted; emphasis added; internal quotation marks
omitted.) Simmons v. Weiss, 176 Conn. App. 94, 98–99,
168 A.3d 617 (2017).
We are unconvinced that these common-law ‘‘ ‘intrin-
sic powers’ ’’ to open a civil judgment; id., 99; necessar-
ily existed with respect to criminal judgments or, if they
did, that they have retained their viability. As previously
stated in this opinion, it is a well settled rule that, ‘‘[i]n
criminal cases . . . a trial court loses jurisdiction upon
the execution of the defendant’s sentence, unless it is
expressly authorized to act.’’13 (Internal quotation
marks omitted.) Wolfork v. Yale Medical Group, supra,
335 Conn. 469 n.12. That well established rule, however,
by its very terms, has no direct applicability with respect
to a final disposition of a criminal case like the one
before us. In the present case, the court completely
disposed of the criminal matter before it, not by virtue
of a judgment of conviction, but by rendering a judg-
ment of dismissal of the criminal charges on October
2, 2019. If a court unconditionally dismisses all pending
charges, then, as is the case with an acquittal, the need
for sentencing or some other action by the court does
not exist before the judgment may be deemed final. See
State v. Bemer, 339 Conn. 528, 537, A.3d (2021)
(‘‘[t]he appealable final judgment in a criminal case
is ordinarily the imposition of sentence’’ (emphasis
added; internal quotation marks omitted)). It follows
that in cases in which a court dismisses all charges set
forth in an information unconditionally, such a court
has rendered a final judgment, and, unlike in the case
of a conviction, we see no compelling rationale for
recognizing any continuing jurisdiction of the criminal
court following such a disposition. As we have dis-
cussed, any common-law ‘‘absolute control’’ or continu-
ing jurisdiction to vacate a criminal judgment during
the ‘‘term’’ in which it was rendered is no longer viable,
and we are not aware of any other surviving contradic-
tory common-law rule conferring jurisdiction to a crimi-
nal court to act postjudgment.
The state, nevertheless, would have us reach a con-
trary conclusion, largely on the basis of our Supreme
Court’s decision in State v. Wilson, supra, 199 Conn.
436–37, the relevant holding of which was, at least in
part, abrogated by State v. McCoy, 331 Conn. 561, 206
A.3d 725 (2019). Although the state acknowledges
McCoy’s abrogation of Wilson, it argues for a very nar-
row construction of it. We conclude that the state’s
arguments are unconvincing and that Wilson properly
cannot be read as expanding the common-law jurisdic-
tion of the criminal court to permit the granting of a
motion to open following a judgment of dismissal.
Before turning to our discussion of Wilson, however,
we note that the state no longer relies on the case law
that it cited in its motion to open in support of its
assertion that ‘‘the [c]ourt maintains authority to reopen
this case . . . .’’ See State v. Johnson, supra, 301 Conn.
643; Tyson v. Commissioner of Correction, supra, 155
Conn. App. 105; State v. O’Bright, supra, 13 Conn. App.
732. Although the state attached copies of all three
opinions to its motion to open, it provided no written
analysis of them nor mentioned them in its argument
to the trial court at the hearing on the motion to open.
Despite ruling in favor of the state, the trial court indi-
cated in its oral decision that none of the cases cited
by the state as favoring the granting of a motion to
open the judgment ‘‘seem[s] to be quite on point.’’ The
state also has not discussed these cases in its brief to
this court. In short, the record contains no argument
by the state regarding how these cases are instructive
and, without the benefit of such input, we are left to
agree with the assessment of the trial court and the
defendant that these cases are inapposite to the issue
before us.14
In Wilson, the defendant appealed from a judgment
of conviction of manslaughter, claiming in relevant part
that the court improperly had denied a motion to sup-
press certain incriminatory statements that he made to
the police during a station house interrogation. State
v. Wilson, supra, 199 Conn. 419. Dispositive of the defen-
dant’s claim was whether the defendant ever invoked
his right to counsel. Id., 426–27. Conflicting evidence
on that issue was presented to the trial court at the
suppression hearing. Id., 427. The trial court initially
rendered an oral decision finding that the defendant
never had asked for counsel. Id., 429–30. The court later
filed a written memorandum in which it seemed to
contradict its oral finding, stating that the defendant
had expressed a desire to obtain a lawyer. Id., 430–32.
Some three years after the defendant was sentenced,
the state filed a motion for articulation asking the trial
court for a definitive ruling as to whether the defendant
had invoked his right to counsel. Id., 432. In response
to the state’s motion, the trial court filed an amended
memorandum stating that it did not credit the defen-
dant’s testimony that he had requested counsel. Id., 433.
The defendant filed a motion for review asking that the
court’s amended memorandum of decision be stricken.
Id., 437–38. Our Supreme Court denied the motion with-
out prejudice to its renewal on appeal. Id., 438. On later
consideration, our Supreme Court concluded that ‘‘[t]he
trial court was without jurisdiction to amend in matters
of substance its original memorandum of decision more
than four months after sentence had been imposed’’
and, accordingly, ordered the amended memorandum
of decision to be stricken from the record. Id. Ulti-
mately, the defendant was granted a new trial, which
was to include relitigation of whether the defendant
had requested counsel. Id., 445.
In addressing whether a criminal court, in response
to a motion for articulation/rectification, could substan-
tively alter or modify its ruling on a motion to suppress,
the court in Wilson had occasion to discuss a criminal
court’s power to open and modify a judgment. See id.,
437. It recognized, as we already have stated, that ‘‘[n]ei-
ther our General Statutes nor our Practice Book rules
define the period during which a trial court may modify
or correct its judgment in a criminal case. On the civil
side, however, Practice Book § 326 [now § 17-4] pro-
vides that any civil judgment or decree may be opened
or set aside within four months succeeding the date on
which it was rendered or passed. We see no reason to
distinguish between civil and criminal judgments in this
respect, and we therefore hold that, for purposes of the
[common-law] rule, a criminal judgment may not be
modified in matters of substance beyond a period of
four months after the judgment has become final.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id. Because it determined that the trial court, in
response to the state’s motion, had modified substan-
tively its judgment more than four months after that
judgment became final, it ordered those changes
stricken from the record. Id., 438.
Subsequently, in State v. Myers, 242 Conn. 125, 698
A.2d 823 (1997), our Supreme Court, citing its decision
in Wilson, held that a criminal court ‘‘retained jurisdic-
tion’’ to entertain a motion for a new trial, even after
sentencing, because ‘‘it could have opened the judg-
ment.’’ Id., 136. The Supreme Court reversed the deci-
sion of the criminal court, which had vacated its initial
decision granting the defendant’s motion for a new trial.
Id., 139. Although the defendant had filed his motion
prior to sentencing, the criminal court did not consider
and decide the motion until after it imposed a sentence.
Id., 129, 131. The criminal court had concluded that it
improperly granted the motion for a new trial because
(1) the defendant’s claim of juror bias should have been
raised by way of a petition for a new trial pursuant to
§ 52-270, and (2) ‘‘ruling on the defendant’s motion after
imposing sentence was improper . . . .’’ (Internal quo-
tation marks omitted.) Id., 136. The Supreme Court
agreed with the position of the state that the defendant’s
motion, which was filed in the confines of the existing
criminal matter, could not properly be construed as a
petition for a new trial over which the court had statu-
tory authority to act postsentencing.15 Id., 135–36. The
court, however, also agreed with the defendant that a
claim of juror bias properly could be brought either by
way of a motion for a new trial or a petition for a
new trial. Id., 134. The Supreme Court rejected without
analysis the trial court’s reasoning that it had lacked
the power to act on a pending motion following sentenc-
ing. Id., 136.
More recently, however, our Supreme Court, in State
v. McCoy, supra, 331 Conn. 574–89, abrogated its deci-
sions in Wilson and Myers to the extent that each deci-
sion implied that the civil, four month rule created an
exception to the common-law notion that the criminal
court lost jurisdiction following sentencing. Part of the
certified question in McCoy was whether the Appellate
Court improperly had concluded that the trial court
properly denied the defendant’s motion for a new trial
for lack of jurisdiction. Id., 564.
The defendant in McCoy was convicted of murder.
Id. The relevant underlying procedural history was as
follows: ‘‘After the jury returned its verdict, but prior
to the sentencing date, the defendant filed a motion for
a new trial. . . . At the sentencing hearing, the defen-
dant sought to have the motion heard by the trial court;
however, the parties and the trial court subsequently
agreed to go forward with the sentencing and to hear
the motion at a later date. . . . As a result, the sentenc-
ing hearing went forward, and the court sentenced the
defendant to sixty years incarceration. . . .
‘‘Months after the sentencing, the defendant
attempted to have his motion for a new trial heard.
Because the defendant’s sentence already had been exe-
cuted, however, the court denied the motion without
a hearing on the ground that it had lost jurisdiction.’’
(Citations omitted.) Id., 565.
In addressing whether a criminal court had any power
to consider a motion for a new trial that, like in Myers,
was filed but not acted on prior to the imposition of a
sentence, the court revisited Wilson’s holding that the
four month rule for opening judgments in civil cases
applied equally to judgments rendered in criminal court
as well as its subsequent reliance on Wilson in Myers.
See id., 574–75, 580–81. After a lengthy discussion of
the ‘‘jurisdiction of criminal courts relating to sentenc-
ing,’’ the court abrogated its statement in Wilson. Id.,
578, 586–87. It explained: ‘‘[G]iven the long and consis-
tent history of our courts applying the traditional rule
that jurisdiction is lost upon the execution of a sen-
tence, we cannot conclude that Myers reflects a retreat
from that common-law rule. Instead, we acknowledge
that Myers and Wilson are anomalies in this court’s
case law, and we take this opportunity to clarify and
reiterate, as we have consistently done since Myers,
that a trial court loses jurisdiction once the defendant’s
sentence is executed, unless there is a constitutional
or legislative grant of authority.’’ Id., 586–87. The court
also suggested that Wilson’s co-opting of the four month
rule in criminal matters was essentially dicta because,
‘‘[d]espite making this pronouncement [about the four
month rule], [the court in Wilson] did not use the four
month rule to find that the trial court had jurisdiction.
Instead, this court concluded that the trial court in that
case was without jurisdiction to modify the judgment
. . . explain[ing] that the judgment in this case became
final when the defendant was sentenced . . . .’’ (Cita-
tion omitted; emphasis in original; internal quotation
marks omitted.) Id., 581. In other words, it was the
finality of the judgment that caused the court to lose
jurisdiction.
The state argues that McCoy abrogated only the four
month rule in criminal matters in cases that have ended
by the imposition of a sentence and, thus, if ‘‘a defen-
dant’s case ends by some mechanism other than the
execution of his sentence, the trial court retains its
inherent common-law authority to modify its judgment
within a four month period.’’ We disagree with the
state’s reading of McCoy for the following reasons.16
First, the four month time period is not itself a crea-
ture of the common law; indeed, no such rule existed.
Rather, it is the result of legislation and court rule,
both of which expressly limit its application to a ‘‘civil
judgment or decree . . . .’’ General Statutes § 52-212a;
Practice Book § 17-4. In other words, those enactments
by their very terms do not apply to criminal matters.
Second, the court in Wilson provided absolutely no
rationale for extending the four month rule to criminal
judgments, except that it saw ‘‘no reason to distinguish
between civil and criminal judgments in this respect
. . . .’’ State v. Wilson, supra, 199 Conn. 437. Wilson,
however, failed to address the significant liberty inter-
ests that arise in criminal matters that, generally speak-
ing, are simply not at stake in civil litigation.
Finally, in abrogating the rule announced in Wilson,
the court in McCoy did not attempt to make the distinc-
tion that the state asks us to draw. Rather, the court
recognized that Wilson and Myers were legal ‘‘anoma-
lies.’’ State v. McCoy, supra, 331 Conn. 586. We construe
McCoy as having fully abrogated in the context of final
criminal judgments any application of the four month
rule, which applies only in civil matters.
B
Judgments Obtained by Fraud
In the civil context, in addition to the four month
rule, it has long been recognized that a court has intrin-
sic power to open a judgment obtained by fraud. As
our Supreme Court has stated: ‘‘The power of the court
to vacate a judgment for fraud is regarded as inherent
and independent of statutory provisions authorizing the
opening of judgments; hence judgments obtained by
fraud may be attacked at any time.’’ (Internal quotation
marks omitted.) Billington v. Billington, 220 Conn. 212,
218, 595 A.2d 1377 (1991). It is unnecessary to decide
at this juncture, however, whether this particular civil
rule applies equally in the criminal context17 because,
even assuming without deciding that it does, we are
unconvinced that the record in the present case would
support a finding that a fraud, as opposed to a negligent
misrepresentation, was perpetrated on the court. More-
over, the state never asked the court to make such a
finding.
‘‘[If] a party seeks to open and vacate a judgment
based on new evidence allegedly showing the judgment
is tainted by fraud, he must show, inter alia, that he
was diligent during trial in trying to discover and expose
the fraud, and that there is clear proof of that fraud.’’
Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 107,
952 A.2d 1 (2008). Neither prong of this test is met in
the present case. ‘‘[A] fraudulent representation . . .
is one that is knowingly untrue, or made without belief
in its truth, or recklessly made and for the purpose
of inducing action upon it.’’ (Internal quotation marks
omitted.) Sturm v. Harb Development, LLC, 298 Conn.
124, 142, 2 A.3d 859 (2010). In other words, to constitute
a fraud on the court, a factual misrepresentation by a
party must be made with an intent to deceive.
Here, there is no basis on which to conclude that
a lack of good faith by counsel existed in relying on
information provided by the defendant’s father or that
the defendant had admitted to him that he had had
contact with minors. The court never found that defense
counsel’s representations to the court at the October
2, 2019 hearing, even those that ultimately were deter-
mined to be untrue, were made with any intent to
deceive the court.18 More importantly, the court, in
granting the motion to open, never indicated it was
doing so on the basis that the judgment of dismissal
was obtained by fraud, specifically noting to defense
counsel that ‘‘nobody has put any dispersions to you
. . . .’’
III
DISMISSALS WITHOUT PREJUDICE/
NOLLE PROSEQUI
Additionally, the state appears to argue that a court
necessarily must have the power to consider and grant
a motion to open a judgment of dismissal because a
new criminal prosecution of the same defendant on the
same charges following a dismissal predicated on the
entry of a nolle prosequi is permissible. A dismissal
following a nolle prosequi, however, which effectively
is rendered without prejudice to the filing of a new
action if otherwise permitted by law, is markedly differ-
ent from the judgment of dismissal rendered in the
present case.
Although our rules of practice formerly authorized
a criminal court to designate a dismissal as entered
‘‘ ‘without prejudice,’ ’’ that rule has since been
repealed. State v. Talton, 209 Conn. 133, 140 and n.10,
547 A.2d 543 (1988). Presumably, any dismissal of
charges by the court is now presumptively deemed
‘‘with prejudice’’ unless reinstatement or refiling of
charges is otherwise provided for by law. As former
Chief Judge Lavery explained in his dissenting opinion
in Cislo v. Shelton, 40 Conn. App. 705, 719–20, 673 A.2d
134 (1996), rev’d, 240 Conn. 590, 692 A.2d 1255 (1997):
‘‘There was no practical difference between a dismissal
without prejudice and a nolle. Practice Book § 727 [now
§ 39-31], in discussing nolles prosequi, provides: The
entry of a nolle prosequi terminates the prosecution
and the defendant shall be released from custody. If
subsequently the prosecuting authority decides to pro-
ceed against the defendant, a new prosecution must be
initiated. In State v. Talton, [supra, 141 n.11], and State
v. Gaston, 198 Conn. 435, 440–41, 503 A.2d 594 (1986),
our Supreme Court recognized that the only difference
between a dismissal and a nolle is the time of erasure.
Under General Statutes § 54-142a (b), the records of an
arrest are immediately erased on a dismissal, whereas,
when a nolle is entered, the records of the arrest are
erased thirteen months after its entry. General Statutes
§ 54-142a (c).’’ (Internal quotation marks omitted.)
‘‘A nolle prosequi is a declaration of the prosecuting
officer that he will not prosecute the suit further at that
time. . . . [T]he effect of a nolle [prosequi] is to termi-
nate the particular prosecution of the defendant without
an acquittal and without placing him in jeopardy. . . .
Therefore, the nolle [prosequi] places the criminal mat-
ter in the same position it held prior to the filing of the
information. Indeed, no criminal matter exists until, and
if, the prosecution issues a new information against the
defendant. . . . If subsequently the prosecuting
authority decides to proceed against the defendant, a
new prosecution must be initiated. . . .
‘‘Until the enactment of General Statutes [§ 54-56b]
in 1975 . . . the power to enter a nolle prosequi was
discretionary with the state’s attorney; neither the
approval of the court nor the consent of the defendant
was required. . . . The principles that today govern
the entry of a nolle prosequi place some restrictions
on the prosecuting attorney’s formerly unfettered dis-
cretion. Although the decision to initiate a nolle prose-
qui still rests with the state’s attorney, the statute and
the rules now permit the defendant to object to a nolle
prosequi and to demand either a trial or a dismissal
except upon a representation to the court by the prose-
cuting official that a material witness has died, disap-
peared or become disabled or that material evidence
has disappeared or been destroyed and that a further
investigation is therefore necessary.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Richard
P., 179 Conn. App. 676, 682–83, 181 A.3d 107, cert.
denied, 328 Conn. 924, 181 A.3d 567 (2018). In the
absence of an objection by the defendant, a nolle prose-
qui essentially results in a resolution of the matter with-
out prejudice, meaning the state may refile the same
charges provided it does so within any applicable stat-
ute of limitations. Accordingly, it would be improper
to analogize a judgment of dismissal following a nolle
prosequi to the judgment of dismissal in the present
case rendered after the completion of a statutory diver-
sionary program.
IV
DECISIONS OF OTHER JURISDICTIONS
Neither party has brought to our attention any case
law from other jurisdictions addressing the power of a
trial court to open or set aside a dismissal of criminal
charges following the completion of a pretrial diversion-
ary program. Our own research reveals that there are
no decisions that are on all fours with the present case.
We have identified a number of decisions addressing
whether a court, following the state’s entry of a nolle
prosequi, has the ability to restore the criminal case to
the docket, particularly in cases in which the state could
otherwise commence an entirely new prosecution.
Given the decidedly different procedural posture of
these types of cases as well as the different statutory
overlays that exist in other jurisdictions, these cases
are readily distinguishable and further discussion of
them would be unhelpful.
We nonetheless do find at least one sister state deci-
sion instructive with respect to the issue before us.
Specifically, the issue before the court in Smith v. Supe-
rior Court, 115 Cal. App. 3d 285, 287, 171 Cal. Rptr. 387(1981), is notably similar to the one now before us:
‘‘[W]hether a trial court may reconsider and vacate an
order dismissing a prosecution where there is an allega-
tion that extrinsic fraud or mistake has taken place and
that new facts would alter the court’s decision.’’ The
California Court of Appeals concluded that, ‘‘at least
where no actual fraud has been perpetrated upon the
court, a criminal court has no authority to vacate a
dismissal entered deliberately but upon an erroneous
factual basis.’’ Id.The facts underlying the court’s dismissal in Smith
were as follows. The defendant successfully appealed
his conviction of embezzlement of a rental car, arguing
that certain evidence admitted against him was the
byproduct of an illegal search. Id. The appeal was
decided by the intermediate appellate court and Califor-
nia’s Supreme Court denied the state’s request to
appeal. Id. On remand, defense counsel and the prose-
cutor met with the judge in chambers to discuss the
possibility that the prosecution should be dismissed
because, without the excluded evidence, the prosecutor
believed he would be unable successfully to retry the
defendant. Id. ‘‘The prosecutor and the court were
under the impression that there were no pending appel-
late matters in the case, defense counsel having so
represented. The court entertained and granted the
prosecution’s motion to dismiss.’’ Id., 287–88. Soon
afterward, however, the prosecutor learned that the
state was in the process of filing a petition for certiorari
in the United States Supreme Court and had, in fact,
filed an application for a stay pending its preparation
and filing of that petition. Id., 288. Although the public
defender’s office also was aware of the pendency of
the petition, neither of the trial attorneys apparently
was informed by his respective office. Id. When the
prosecutor learned about the pending proceedings, he
moved the court to vacate its order of dismissal. Id.Following a hearing, the trial court granted the motion
to vacate and reinstated the charges. Id. The defendant
appealed. Id.On appeal, the court noted that ‘‘the limits of a crimi-
nal court’s power to reconsider a ruling and vacate an
order or judgment, though referred to in passing, have
to some extent been left open by the California Supreme
Court.’’ Id. After noting conflicting language in its
existing case law, the court rejected the state’s argu-
ment that the court had ‘‘inherent equity powers,’’ as
recognized in civil matters, to set aside a judgment that
was obtained by fraud or mistake. Id., 292. The court
took note of prior precedent that had distinguished a
court’s inherent power to correct clerical errors neces-
sary to make its records reflect the true judgment of
the court and judicial error, or error made in rendering
a judgment properly reflected in the record. Id., 290–91.
The court stated that ‘‘[a]ny attempt by a court, under
the guise of correcting clerical error, to revise its delib-
erately exercised judicial discretion is not permitted.’’
(Internal quotation marks omitted.) Id., 290. The court
further stated: ‘‘Even granting that criminal courts have
inherent powers which they may exercise in various
contexts, a large step must be taken before concluding
that a criminal judgment or an order dismissing a prose-
cution can be disturbed because of a mistake in the
presentation of the operative facts.’’ Id., 292–93. We
find these same admonitions persuasive and relevant
to our consideration of the matter before us because the
cases invoke many of the same policy considerations.19
V
POLICY CONSIDERATIONS
As we have indicated, we agree with the defendant
that the court’s judgment dismissing the criminal
charges in the present case effectively was a judgment
of dismissal ‘‘with prejudice.’’ This is because, by stat-
ute, the court’s determination that the defendant satis-
factorily completed the program meant that ‘‘all records
of such charges shall be erased pursuant to section 54-
142a.’’ General Statutes § 54-56l (i). In other words,
unlike when a case is resolved by a nolle prosequi or the
court dismisses an information under circumstances in
which the state may refile charges, the dismissal of
pending criminal charges following the determination
by the court that the defendant successfully has com-
pleted a diversionary program as authorized by § 54-
56l results in a complete erasure of the charges that
led to the defendant’s participation in the program,20
without the risk that such charges could be revived or
reinstated at a later date.
By applying to participate in the supervised diversion-
ary program and being permitted by the court to do so,
the defendant gave up his right to defend against the
allegation leveled by the state and agreed to be subject
to numerous conditions in excess of those imposed by
the court as conditions of his release. The defendant
also took on burdens he would not have otherwise
had, including the time and costs associated with his
participation in various program requirements. As one
example, the record indicates that the defendant paid
for his counseling at the Sterling Center. He agreed to
do so in exchange for the statutory assurance that, if
he completed the program, his charges would be erased,
meaning he would no longer face any legal jeopardy
associated with those charges. In other words, his par-
ticipation in the program came with certain statutory
rights that he lost when the court opened the judgment
of dismissal by a procedure that was not part of the
statutory scheme.
Furthermore, it is indisputable that significant liberty
and finality of judgment interests also attach by virtue
of the court’s granting of an unconditioned judgment
of dismissal. ‘‘A great deal is at stake in a criminal trial.
The interests involved go beyond the private interests at
stake in the ordinary civil case. They involve significant
public interests. The accused during a criminal prosecu-
tion has at stake interests of immense importance, both
because of the possibility that he may lose his liberty
upon conviction and because of the certainty that he
would be stigmatized by the conviction. . . . Indeed,
the criminal jury trial has a role in protecting not only
the liberty of the accused, but also the entire citizenry
from overzealous or overreaching state authority.’’
(Citation omitted; internal quotation marks omitted.)
State v. Myers, supra, 242 Conn. 140.
Although we are cognizant that the state ‘‘has a valid
and weighty interest in convicting the guilty’’; id.,
140–41; and that the court has an interest in ensuring
that justice is done and that the public is protected, the
unique situation that the court found itself in in this
case was largely the result of the state’s handling of
the initial October 2, 2019 hearing. Here, an anonymous
tip came to the attention of the probation officer at the
end of August, 2019. Between that time and the October
2, 2019 hearing, probation alerted the state of the infor-
mation it had, and, if necessary, the state could have
asked the court for a continuance of the hearing to
investigate further and confirm the allegations. That did
not happen. Instead, the state, in opposing the dismissal
of the defendant’s charges, chose to rely solely on the
negative final report and the letter appended thereto,
which contained only unsubstantiated allegations of
potential contacts with minors and one admitted failure
to report as the sole basis to support the contention
that the defendant unsatisfactorily completed the diver-
sionary program. The state did not provide affidavits
from the various YMCA employees who had provided
information to the probation officer. It did not obtain or
submit copies of the employment applications allegedly
executed by the defendant or other corroborating evi-
dence. It did not request the opportunity to question
under oath the witness relied on by defense counsel in
his argument and who was present in the courtroom
during the October 2, 2019 hearing. Moreover, the state
has not lost its ability to prosecute the defendant with
respect to any actions that he took while participating
in the program that may constitute violations of his
terms of release or new crimes.
VI
CONCLUSION
On the basis of the preceding discussion and our
consideration of the arguments of the parties, we con-
clude that once the criminal court rendered a final judg-
ment dismissing all charges in the present case it lost
jurisdiction over the matter and could not properly
entertain, let alone grant, a motion to open and restore
the matter to the criminal docket. Rather than
attempting to provide a legal basis for its exercise of
power over the state’s motion to open, the court indi-
cated that it was opening its prior dismissal because it
believed it was simply ‘‘wrong’’ that it had relieved the
defendant of criminal liability on the basis of erroneous
information. Such an outcome, however, is always a
possibility in the adjudication of criminal matters. There
is always a possibility that a defendant will be acquitted
or have charges dismissed following which the state
may uncover new information or previously uncovered
proof, or the court may receive information that a wit-
ness gave false testimony or that material facts were
other than what were presented to the court or a jury.
Such possibilities do not in and of themselves confer
jurisdiction on a court once that jurisdiction is lost
following a final disposition of a criminal matter.
Similarly misguided was the court’s suggestion that
its ruling was akin to a clerical error for which it had
the inherent authority to correct. A ‘‘clerical error’’ is
an error in the recording of the judgment such that the
judgment recorded does not reflect the judgment that
the court actually rendered. Here, there is no question
that, on the basis of the facts as presented, the court
intended to grant a judgment of dismissal, and the
record duly reflects that exact judgment. Any error
existing in the present case was not ‘‘clerical’’ in nature
but instead involved how the matter was adjudicated
before the court.
The court made a reasoned determination on the
facts presented that, contrary to the opinion of the
Court Support Services Division and the state, the
defendant had completed satisfactorily the diversionary
program. It did so on the basis of the evidence before
it and the arguments presented by the parties, including
the representations made by defense counsel that went
unchallenged despite later proving to be, at least in
part, untrue. In accordance with § 54-56l, the court dis-
missed all the pending criminal charges and the defen-
dant was discharged unconditionally. The state never
indicated on the record any intention to appeal the
court’s decision, and, therefore, the defendant left the
hearing with a well-founded belief that his interactions
with the criminal court regarding this case had con-
cluded. The fact that the state later came into posses-
sion of better or more convincing evidence that, if pre-
sented to the court at the October 2, 2019 hearing, likely
would have changed the court’s calculus and, therefore,
its decision did not confer power on the court to enter-
tain a motion to open the judgment of dismissal.
At the time the motion was filed, the court had dis-
posed of the criminal matter and the defendant had
been discharged from his obligations under the program
with the understanding that his criminal charges were
no longer hanging over his head. The only available
means for the state to overturn the court’s decision was
through the appeal process, which it elected not to
pursue. Because we conclude that the court lacked
the power to consider the state’s motion to open, the
judgment granting the motion must be reversed.21
The judgment is reversed and the case is remanded
with direction to dismiss the state’s motion to open.
In this opinion, ALEXANDER, J., concurred.
1
General Statutes § 54-56l provides in relevant part: ‘‘(a) There shall be
a supervised diversionary program for persons with psychiatric disabili-
ties . . . .
***
‘‘(e) Upon confirmation of eligibility and consideration of the treatment
plan presented by the Court Support Services Division, the court may grant
the application for participation in the program. . . . The person shall be
subject to the supervision of a probation officer who has a reduced caseload
and specialized training in working with persons with psychiatric disabili-
ties. . . .
‘‘(g) Any person who enters the program shall agree: (1) To the tolling
of the statute of limitations with respect to such crime or violation; (2) to
a waiver of such person’s right to a speedy trial; and (3) to any conditions
that may be established by the division concerning participation in the
supervised diversionary program including conditions concerning participa-
tion in meetings or sessions of the program. . . .
‘‘(i) If such person satisfactorily completes the assigned program, such
person may apply for dismissal of the charges against such person and the
court, on reviewing the record of such person’s participation in such program
submitted by the Court Support Services Division and on finding such satis-
factory completion, shall dismiss the charges. . . . Except as provided in
subsection (j) of this section, upon dismissal, all records of such charges
shall be erased pursuant to section 54-142a. An order of the court denying
a motion to dismiss the charges against a person who has completed such
person’s period of probation or supervision or terminating the participation
of a person in such program shall be a final judgment for purposes of
appeal. . . .’’
2
According to the record, at the time he filed his application, the defendant
already was participating in a supervised diversionary program in a separate
case with respect to charges of larceny in the third and fourth degrees.
3
The state argued at the hearing that at the time the program was granted
in 2017, among the conditions imposed were that the defendant was ‘‘not
to volunteer with minors, and not to go near schools and parks, that’s to
keep the defendant away from minor children.’’ After recounting the factual
allegations underlying the charges pending against the defendant, the state
continued: ‘‘These are very serious allegations to which the defendant gets
a dismissal. The complainant, the mother of the complainant wanted the
defendant prosecuted to the fullest extent possible. This she said back in
August of 2017, that this matter has significantly impacted the [complainant].
In hindsight, she said it was apparent that the defendant was grooming the
[complainant] for sexual abuse. While the [complainant] has not disclosed
sexual abuse, the mother of the [complainant] suspected that it had occurred
or was about to occur, and she wanted to be informed with regards to any
plea offers and dispositions with regards to this matter. She was also hoping
that the defendant would not engage with any youth mentoring and/or work
at the Boys and Girls Club.
‘‘So that’s the state’s concern, and the letter that I got yesterday from
Adult Probation in Waterbury was that on August 29th there was a call from
an anonymous source. So I understand that Your Honor is going to take
that into account that the source was anonymous, I get that, but the informa-
tion was that the defendant had recently volunteered at a YMCA trip that
involved minors. The person was not specific as to which YMCA was
involved. Through the course of the investigation, the officer wasn’t able
to verify this accusation because there was a limited amount of information,
but the officer found that [the defendant] is not allowed to enter the Water-
bury YMCA or the Torrington YMCA. The Plainville YMCA director was able
to inform the officer that . . . this defendant had unsuccessfully applied
for three separate employment positions as a camp counselor in March of
this year. That’s concerning. . . .
‘‘The defendant was also directed to report to the Office of Adult Probation
on September 18, 2019, and failed to do so. He is unlike someone who’s
been convicted and is on probation. We do see violation of probation war-
rants where a defendant is asked to report to the Office of Adult Probation
and the warrant goes on for six pages saying how the defendant didn’t
report to Adult Probation. He’s differently situated because [the defendant]
gets a dismissal today if he’s successful, and the state’s claiming that he is
not successful. Not only did he not report, but he wants to be a camp
counselor. I don’t want my kids going to the same camp as [the defendant]
works . . . .’’
4
We note that the state did not file a motion for permission to appeal the
court’s judgment of dismissal or, more importantly, indicate any intent to
appeal the court’s ruling on the record. ‘‘[P]ursuant to General Statutes § 54-
96, the permission of the trial court is a prerequisite to the right of the state
in a criminal case to appeal . . . .’’ State v. Bellamy, 4 Conn. App. 520, 522,
495 A.2d 724 (1985); see also General Statutes § 54-96 (‘‘[a]ppeals from the
rulings and decisions of the Superior Court, upon all questions of law
arising on the trial of criminal cases, may be taken by the state, with the
permission of the presiding judge, to the Supreme Court or to the Appellate
Court, in the same manner and to the same effect as if made by the accused’’
(emphasis added)). Although the judgment of dismissal was not a result of
a criminal trial, we will presume for the sake of this discussion that the
state nevertheless had a right to appeal from the judgment of dismissal,
although such a right is not expressly provided for in § 54-56l.
Following a judgment of acquittal, the state must indicate at the time of
judgment whether it intends to seek permission to appeal ‘‘so that the
accused shall not be forthwith discharged. The evil perceived in granting a
tardy request of the state to appeal was the injustice of dragging back into
court a defendant who had reasonably assumed that his discharge meant
that he was a free man no longer charged with a crime.’’ (Emphasis added;
internal quotation marks omitted.) State v. Ross, 189 Conn. 42, 46, 454 A.2d
266 (1983), citing State v. Carabetta, 106 Conn. 114, 119, 137 A. 394 (1927).
‘‘It is not necessary that the prosecutor shall at the moment of judgment
reach a final determination that he will prosecute the appeal. It is necessary
that he determine at the time of the judgment that he ought to ask the court
for permission to take such appeal, so that the accused shall not be forthwith
discharged; to that he is entitled unless the prosecutor shall move for such
permission. If permission be granted, he will not be entitled to discharge
until the appeal has been determined in his favor, or withdrawn.’’ State v.
Carabetta, supra, 119.
To the extent that following a final disposition of criminal charges in
favor of a defendant, whether by acquittal or unconditional dismissal of
charges, a criminal court arguably retains some jurisdiction to act postjudg-
ment in the event that the state seeks permission to appeal, that jurisdictional
window is a narrow one and necessarily closes if the state fails timely to
invoke it. In the present case, because the state filed a ‘‘motion to reopen
dismissal’’ and failed to signal any intent to appeal pursuant to § 54-96 at
the time the court granted the judgment of dismissal, it is unnecessary at
this juncture to determine either the scope or the duration of any continuing
jurisdiction that might flow from such a request. Nonetheless, it must be
noted that the ‘‘right of the [s]tate to appeal in criminal cases . . . did not
exist at common law and was first given by the statute of 1886 [Public Acts
1886, c. XV], with the permission of the presiding judge . . . in the same
manner and to the same effect as if made by the accused.’’ (Internal quotation
marks omitted.) State v. Carabetta, supra, 106 Conn. 115. Accordingly, there
appears to be no basis for finding any continuing common-law jurisdiction
flowing from the mere fact that the state had a right to appeal from the judg-
ment.
5
The addendum confirmed the gravamen of representations that defense
counsel made at the October 2, 2019 hearing in response to the probation
officer’s original letter indicating in part that the defendant had failed to
appear for his final probation appointment and that probation was unaware
of the defendant’s whereabouts. Specifically, the addendum provided that
the defendant met with the officer on October 1, 2019. At that time, the
defendant explained that he had forgotten about the last appointment and
reported that he was living in East Hartford and was attending Goodwin
College. The addendum also indicated that the defendant had become ‘‘agi-
tated and refused to have a civil conversation about the negative report
submitted to the court,’’ at which point, the officer asked the defendant to
leave the office.
6
The report contains a paragraph detailing the following new information
that the officer claims he was able to confirm ‘‘on [October 2, 2019], through
the investigative efforts of this officer . . . .’’ The defendant had worked
as a camp counselor at Camp Onseyawa in upstate New York from August
12 to August 16, 2019. The camp’s website provides in relevant part that
the mission statement of the camp is to ‘‘provide a camping experience for
8-16 year old children with disabilities . . . .’’ The officer positively identi-
fied the defendant as attending a camp session from a video posted on the
Internet in which the defendant was ‘‘surrounded by children and, at one
point, he ha[d] a minor child on his back in a playful manner.’’ A camp
director confirmed that he was an employee of the camp but was sent home
for his ‘‘inappropriate behavior with campers.’’ The director, in describing
this behavior to the officer, purportedly indicated that the defendant ‘‘ ‘had
trouble separating himself from behaviors of the campers’ ’’ and that ‘‘ ‘[a]t
one point he was frustrated and was screaming at the kids that he hated
them.’ ’’
7
The court’s complete ruling was as follows: ‘‘All right. The court is going
to rule as following: I don’t have every case in front of me right now. I just
have [the defendant’s]. And the court will indicate and put two things into
exhibits at this time. One is a report dated October 1, 2019, from the Office
of Adult Probation indicating the defendant missed an appointment. Also I
have before me, and this is a five page letter from the Office of Adult
Probation dated October 4, [2019], to Rebecca Barry, supervisory assistant
state’s attorney for the state’s attorney’s office at G.A. 5 in Derby. The
defendant—it’s a letter from the Office of Adult Probation indicating the
defendant was told on repeated times not to have any contact with minors.
And on August 29, [2019], the office received information from a reliable
confidential source who indicated he had volunteered—the defendant had
volunteered at a YMCA trip [for] minors. In fact, although it was represented
to me that he had never—that he—that the defendant had applied for a
YMCA job, it was for adults, this indicates the complete opposite, that is,
the defendant applied for positions and did not get them with regards to
camp counselor that involved minors.
‘‘In addition, this has information with regards to the camp in which the
defendant worked at in Geneva, New York. And I should say the camp’s
website is, the mission of the camp is to provide a camping experience for
eighteen—eight to sixteen year old children with disabilities from the four
county area and to foster independence, acceptance, and others through
social, recreational, and educational aspects of life. I had received that
day of the dismissal a film clip indicating the defendant worked at that
particular camp.
‘‘And I, look, I don’t know a lot about subject matter jurisdiction. I know
I looked at the cases that the state has provided with and none of them
seem to be quite on point. But I also know what the right thing to do is.
And the right thing to do in this particular case is to reopen this case and
have the defendant—and I say and have the defendant face the charges. I
say that because this dismissal was granted under erroneous grounds. The
dismissal was false, with false information. And, counsel, nobody has put
any dispersions to you on there, but I—and I’m not going to ask for—elicit
a response, but it is wrong. It is wrong the defendant received a dismissal.
Just as if it was a clerical error, I will say this was an error in that I had
none of this information before me.
‘‘And, you know, this isn’t an operating under suspension. The public
policy, I mean, involved here is more significant to that. The defendant was,
specifically, was told that he could not work or be around minors, yet he
worked for—at a camp that had in its mission statement to work with
children between the ages of eight to sixteen with emotional or physical
disabilities. So what the defendant did was just commit a complete lie upon
this court and he should not benefit from that.
‘‘Like I said, I’m not quite sure about where I stand subject matter jurisdic-
tion-wise and an appellate or higher court may tell me otherwise. And,
typically, I stand before groups and say I’m no trail blazer with regards to
the law, but this is the right thing to do because I was provided all the
wrong information at the very day that it was to be dismissed. So this could
be placed on the jury list.’’
8
The court stated at the start of the hearing that it believed it had dismissed
the defendant’s charges ‘‘under false pretenses that the defendant was in
compliance when, boy, not only was he not in compliance, he couldn’t have
been any further away from compliance. . . . I’m a little angered because
it really stings—it hurts that such a misrepresentation—and, counsel, I’m
not faulting you, you went with the information you had with you at the
time—but it was not even close to being accurate or truthful.’’ (Emphasis
added.) It is implicit in the court’s statement that the court did not believe
that defense counsel intentionally provided inaccurate information to the
court with the goal of perpetrating a fraud on the court. Because the court’s
focus was on the representations by defense counsel, it failed to acknowl-
edge in its analysis that the state presented no evidence to contradict the
arguments of defense counsel, did not ask to examine the defendant’s father
under oath, and failed to request a continuance to verify the anonymous
information or produce additional evidence to support its objection to the
dismissal. As a result, there was no evidence before the court to find that
a fraud had been perpetrated on the court at the time of the dismissal on
October 2, 2019.
9
General Statutes § 54-56l (i) provides in relevant part that an order
denying dismissal of criminal charges ‘‘against a person who has completed
such person’s period of probation or supervision’’ is ‘‘a final judgment for
purposes of appeal.’’ In the present case, by virtue of its granting of the
state’s motion to open, the court effectively denied dismissal of the defen-
dant’s criminal charges. Accordingly, we conclude that the present appeal
is properly before us.
10
We find no merit in the state’s argument that the defendant failed to
preserve his claim because he framed his argument before the trial court
as one challenging the court’s subject matter jurisdiction whereas, on appeal,
he now challenges only the court’s authority to act, which, according to the
state, is an entirely new and distinct claim. We construe the defendant’s
claim before the trial court and this court to argue more generally that the
court lacked any power to open the judgment of dismissal, whether for
want of jurisdiction or lack of statutory authority. Accordingly, we are
unconvinced that we should decline to review the defendant’s claim on the
ground that he failed to preserve it properly before the trial court.
11
Whether this common-law rule applied equally in civil and criminal
matters is not discussed in Wilson, although we note that the court’s discus-
sion of the rule cites only to civil cases. Moreover, the discussion in Wilson
lacks clarity about whether the ‘‘jurisdiction’’ lost by the court at common
law following the expiration of the term was subject matter jurisdiction or
personal jurisdiction. State v. Wilson, supra, 199 Conn. 436–37. If the court
lost subject matter jurisdiction, presumably the party could not resuscitate
it through waiver or consent. See A Better Way Wholesale Autos, Inc. v.
Saint Paul, 338 Conn. 651, 662, 258 A.3d 1244 (2021) (‘‘a subject matter
jurisdictional defect may not be waived . . . and . . . subject matter juris-
diction, if lacking, may not be conferred by the parties, explicitly or implic-
itly’’ (internal quotation marks omitted)). It is also possible that the term
‘‘jurisdiction’’ was used loosely as a means of describing only the court’s
authority to act rather than any real limit on its jurisdiction.
12
The dissenting opinion, rather than seeking to determine when, under
our common law, a court’s jurisdiction over a criminal matter ends, instead
frames the issue as one ‘‘pertaining to the court’s retention of jurisdiction
. . . .’’ (Emphasis added.) The dissent seems to conclude that the common-
law rule is that a court of general jurisdiction retains that jurisdiction indefi-
nitely and that, because this purported rule has not been expressly super-
seded or abrogated by statute or decisional law, it remains applicable.
Sanford v. Sanford, 28 Conn. 5, 14 (1859), the principal authority of our
Supreme Court relied on by the dissenting opinion as support for the proposi-
tion that, under the common law, ‘‘ ‘jurisdiction continues to exist in full
force’ ’’ and is somehow retained indefinitely, does not bear the weight that
the dissenting opinion places on it. Indeed, the Supreme Court in Sanford
explicitly stated that, to the contrary, a court retains jurisdiction over a
cause only ‘‘until the case should be finally determined.’’ Id. We read Sanford
as supporting our conclusion that a court’s jurisdiction over a criminal matter
generally ends—or, in Sanford’s parlance, is ‘‘exhausted’’; id.;—following a
final disposition of the criminal charges. Moreover, Sanford is not a criminal
case. It did not involve the question of whether, under the common law, a
court exercising criminal jurisdiction retains that jurisdiction after it dis-
misses an action.
13
The limited and continuing jurisdiction of criminal courts to hear post-
sentencing motions to correct an illegal sentence, as set forth in Practice
Book § 43-22, arises from the common-law rule that a trial court has the
power to modify a sentence, even after its imposition, if that sentence is
invalid. See State v. Lawrence, 281 Conn. 147, 155, 913 A.2d 428 (2007).
14
In State v. Johnson, supra, 301 Conn. 634, the defendant was charged
in four separate cases, two involving misdemeanor charges, one involving
a felony charge and the last involving a violation of probation. He was
found incompetent to stand trial and not restorable to competency. Id. He
subsequently filed a motion to dismiss the charges in all four cases, arguing
with respect to the misdemeanor charges and the violation of probation
case that, pursuant to General Statutes § 54-56d (m) (5), the court was
required to dismiss ‘‘ ‘with or without prejudice, any charges for which a
nolle prosequi is not entered when the time within which the defendant
may be prosecuted for the crime with which the defendant is charged . . .
has expired . . . .’ ’’ Id., 637–38. He further argued that, with respect to the
felony charge, for which the statute of limitations had not yet run, he was
entitled to a dismissal because of ‘‘[i]nsufficiency of evidence or cause to
justify the bringing or continuing of such information or the placing of the
defendant on trial . . . .’’ Practice Book § 41-8 (5); see also State v. Johnson,
supra, 638. The trial court concluded that § 54-56d (m) (5) did not apply
because ‘‘his crimes had not resulted in the death or serious injury of another
person,’’ but it granted the defendant’s motion and dismissed all charges
without prejudice on the alternative ground that it lacked personal jurisdic-
tion over the defendant once he was found incompetent and not restorable
to competency. State v. Johnson, supra, 635. Unlike in the present case, the
state appealed the dismissal of the charges. Id.In support of its motion to open, the state in the present case provided
a pinpoint cite to a portion of the Johnson opinion analyzing the defendant’s
argument that the state was not aggrieved by the dismissal of the charges
without prejudice and, thus, lacked standing to appeal. See id., 642–43. In
Johnson, our Supreme Court agreed in part and rejected in part that argu-
ment, the resolution of which turned on whether the state could reinstitute
the particular charges. Id., 643. The pinpointed portion of the analysis pro-
vides as follows: ‘‘A dismissal without prejudice terminates litigation and
the court’s responsibilities, while leaving the door open for some new, future
litigation. . . . It is well established that a dismissal without prejudice has
no res judicata effect on a subsequent claim. . . . Accordingly, [t]he grant-
ing of a motion to dismiss without prejudice . . . does not preclude the
state from charging the defendant in a new information with the same
offenses within the applicable statute of limitations.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.) Id. In other words,
the issue in Johnson was the limits of the state’s authority to bring new
charges. Nothing in this analysis is germane to whether a criminal court
has the power to entertain a motion to open a judgment of dismissal. More-
over, unlike the present case, the court’s dismissal of the charges in Johnson
was expressly without prejudice. Id., 638.
Tyson v. Commissioner of Correction, supra, 155 Conn. App. 97, was a
habeas appeal in which the petitioner challenged the habeas court’s dismissal
of his habeas petition. The state in the present case, in citing to Tyson in
support of it motion to open the judgment of dismissal, provided a pinpoint
cite to a section of the opinion in Tyson in which the appellate court
determined that it lacked subject matter jurisdiction over a portion of the
appeal because the petitioner was not aggrieved by the habeas court’s
dismissal, which was effectively without prejudice. See id., 105. The pin-
pointed page contains a portion of the same boilerplate language quoted in
Johnson. Id. Like Johnson, it is entirely unclear how the quoted language
supports the position advanced by the state in the present case, particularly
given the markedly distinct factual and legal postures involved.
Finally, State v. O’Bright, supra, 13 Conn. App. 733–34, was a case in
which the trial court had dismissed an earlier information on the ground
that the affidavit submitted in support of the arrest warrant failed to establish
probable cause. The court did not expressly state whether that dismissal
was with or without prejudice as it was required to do at the time under a rule
of practice since repealed. Id., 734. After the state filed a new information,
the court granted the defendant’s motion to dismiss the new information
with prejudice, concluding that the trial court’s prior dismissal also had
been intended to be with prejudice. Id. ‘‘The sole issue on appeal [was]
whether a trial court order purporting to dismiss an information and dis-
charge the defendant was a dismissal with prejudice that would preclude
reprosecution . . . for the same offense.’’ Id., 733. This court concluded
that it did not bar reprosecution and reversed. Id., 735–36. Like Johnson,
the opinion in O’Bright does not address a trial court’s authority to set aside
or open a judgment of dismissal but implicates only the limits of the state’s
authority to bring new charges following a dismissal, which is not the issue
before us.
15
‘‘A petition for a new trial is properly instituted by a writ and complaint
served on the adverse party; although such an action is collateral to the
action in which a new trial is sought, it is by its nature a distinct proceeding.’’
(Internal quotation marks omitted.) State v. Myers, supra, 242 Conn. 135.
16
The state and the dissenting opinion seek to establish different limita-
tions on the power of the criminal court based on the manner in which a
criminal matter terminates. We can conceive of no compelling rationale
why the four month rule does not apply to a judgment that became final
on imposition of a sentence but should apply to a judgment terminated by
the dismissal of charges. In both instances, there has been a complete and
final resolution of the information on which the criminal court’s jurisdiction
is founded. See State v. Daly, supra, 111 Conn. App. 401–402. The state’s
argument is no more persuasive than the one advanced by the defendant
in State v. Falcon, 84 Conn. App. 429, 435, 853 A.2d 607 (2004), overruled
on other grounds by State v. Das, 291 Conn. 356, 968 A.2d 367 (2009), which
this court squarely rejected. The defendant in Falcon, who challenged the
court’s dismissal for lack of jurisdiction of his postsentencing motion to
withdraw his plea, argued that the trial court never ‘‘relinquished jurisdiction
because he never was transferred to the custody of the [C]ommissioner of
[C]orrection’’ and a criminal court’s jurisdiction ended only ‘‘when a prisoner
is taken into the custody of the [C]ommissioner of [C]orrection.’’ State v.
Falcon, supra, 430, 434–35. The court rejected the defendant’s reasoning,
noting that, if true, ‘‘a final judgment would be limited to cases in which a
defendant was sentenced to incarceration and would preclude finality with
the imposition of a suspended sentence, probation, conditional or uncondi-
tional discharge, or the imposition of a fine. Such a construction would
undermine the societal interest in the finality of judgments, and the defen-
dant’s position is therefore impracticable.’’ Id., 435. This reasoning supports
our recognition of a rule linking a criminal court’s power to act to the finality
of the judgment rendered rather than to the type of judgment rendered.
17
The dissenting opinion incorrectly states that ‘‘[t]he majority does appear
to recognize that the court could exercise jurisdiction if its judgment had
been procured by fraud but dismisses this possibility on the basis that the
court did not find that its judgment had been fraudulently procured.’’ We
do not. We, in fact, leave any such recognition for another day and merely
assume arguendo that it applies, having found no case in which the fraud on
the court exception has been applied in the criminal context. The dissenting
opinion cites to none.
18
The dissenting opinion acknowledges that the court made no explicit
finding of fraud or any intent to deceive. Nevertheless, it states that the
‘‘record does support a determination that in granting the [state’s] motion
[to open] the court made a unilateral mistake induced by the misrepresen-
tations of counsel.’’ (Emphasis added.) We are not clear what standard the
dissenting opinion is invoking by this statement. Nevertheless, it remains
that the representations made by counsel to the court, even if they later
proved to be factually inaccurate in whole or in part, cannot properly be
labeled ‘‘misrepresentations’’ without a finding that counsel had some intent
to deceive or obfuscate, a factual finding that is not a part of the record
and cannot be made by this court on appeal. If a mistake was made in this
case, it was the failure of the state, prior to dismissal, to seek to put on
evidence of the defendant’s alleged noncompliance with the terms of the
diversionary program or to request a continuance to investigate further.
19
The dissenting opinion suggests that policy considerations have no valid
place in our consideration of the jurisdictional question before us. We dis-
agree. In ascertaining whether the court had jurisdiction in the present case
to open the judgment of dismissal, we are required to analyze existing
common-law precedent and relevant statutes and provisions of our rules of
practice, none of which clearly answers the question posed by this case.
Policy considerations, therefore, are relevant in interpreting the scope and
significance of these legal authorities. In other words, just as we would
consider existing public policy in framing or ascertaining common-law rules;
see Demond v. Project Service, LLC, 331 Conn. 816, 848, 208 A.3d 626 (2019);
it is appropriate for this court to consider relevant public policy interests,
including those underlying our finality of judgment jurisprudence, particu-
larly in a criminal case.
20
Significantly, the erasure statute provides not just for the erasure of
records but that ‘‘[a]ny person who shall have been the subject of such an
erasure shall be deemed to have never been arrested within the meaning
of the general statutes with respect to the proceedings so erased and may
so swear under oath.’’ General Statutes § 54-142a (e) (3).
21
To the extent that the dissenting opinion’s final footnote implies that
the majority takes ‘‘a dim view of the wisdom and discretion of the trial
bench,’’ that is certainly not the case. To the contrary, we recognize that
the trial bench generally, and certainly the judge in this particular case,
attempts to exercise its authority in a reasoned manner with the interests
of the parties and justice in mind. Whether a court has jurisdiction to act
under a given set of circumstance, however, does not turn on the seriousness
of the underlying charges but on whether the court has authority to act.