Having your criminal case dismissed in California can feel like a major win. Whether it happened because of a lack of evidence, a witness failing to appear, or other procedural issues, dismissal often gives people a sense of closure. But that feeling may be premature.
Just because a case was dismissed doesn’t always mean it’s gone for good. In many situations, prosecutors have the legal right to refile charges—even after a dismissal. Whether they can or can’t depends on several important factors, including the type of charge, how many times it has been dismissed, how the dismissal happened, and the applicable time limits under California law.
If you or someone you care about has had a case dismissed—or is now facing a refiled case—this article will help you understand what’s at stake and what steps you should take next.
What Does It Mean When a Case Is Refiled?
A refiled case is one in which the prosecutor brings criminal charges again after a previous case involving the same incident was dismissed. This doesn’t mean you were found not guilty; it simply means the court closed the earlier case—often “without prejudice”—which leaves the door open for prosecution to try again.
Was Your Case Dismissed With or Without Prejudice?
The type of dismissal makes a major difference:
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With Prejudice: This type of dismissal is final. The prosecution cannot refile the same charges. It typically happens when there’s a legal reason that blocks any further action, such as a violation of constitutional rights or an improper arrest.
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Without Prejudice: This allows the prosecutor to refile the case later, assuming they do so within the legal time limits and don’t violate other legal protections. Most criminal cases in California are dismissed without prejudice unless the court or law specifically says otherwise.
So, if your case was dismissed without prejudice, you should absolutely be aware that it could return—and take legal steps accordingly.
Can the Prosecutor Legally Refile the Case?
Yes, prosecutors in California are often allowed to refile a criminal case, depending on:
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The type of charge (felony or misdemeanor)
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The number of times the case has already been dismissed
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The reason for the dismissal
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Whether the statute of limitations has expired
Misdemeanor vs. Felony Refiling Rules
Misdemeanors
Under California law, a misdemeanor can generally only be filed once. If a misdemeanor case is dismissed even one time, the prosecution is typically barred from bringing it back.
Felonies
Felonies follow the two-dismissal rule. A felony case may be filed again after the first dismissal, but once it’s dismissed twice, the law generally prohibits a third attempt. However, there are important exceptions, especially for serious or violent crimes.
Key Exceptions That Allow Refiling
There are situations where even after a case has been dismissed once—or even twice—the prosecution may still refile. These exceptions are important to understand.
1. Violent Felonies
For certain serious or violent felonies, the law allows prosecutors to refile even after multiple dismissals. This exception is often used in cases involving violent crimes like robbery, assault with a deadly weapon, or certain sex offenses.
2. Excusable Neglect
If one of the earlier dismissals happened because of something outside the prosecutor’s control—like a key witness being unavailable or court scheduling issues—they may claim “excusable neglect” and try again.
3. New Evidence
If new and significant evidence comes to light after a dismissal, it may allow the case to be refiled, as long as it still falls within the statute of limitations.
4. Different or Modified Charges
Even if a specific charge was dismissed, prosecutors may try to refile new or modified charges based on the same incident if the legal basis for the charges has changed.
Statute of Limitations Still Applies
Even if refiling is technically allowed, prosecutors still have to file within the time limits set by California’s statute of limitations.
Typical examples:
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Misdemeanors: 1 year from the date of the offense
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Felonies: 3 years for many charges, but longer or even unlimited for serious offenses like murder or sexual assault
If the statute of limitations has expired, then the case is barred from being refiled—no matter how serious the charge or what new evidence emerges.
What Happens If a Case Is Refiled?
If your case is refiled, the legal process starts over:
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You may be arrested again or receive a summons
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A new arraignment will be scheduled
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You could face updated charges or the same ones as before
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The court may revisit bail or release conditions
This is a critical time to act. You may have strong arguments to challenge the refiling—and, in some cases, get it thrown out immediately.
What Should You Do If Your Case Gets Refiled?
If you’re facing a refiled case in California, don’t assume the prosecution has the right to do so. Refiling must meet strict legal requirements, and not every attempt is lawful.
Take These Steps Immediately:
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Speak to a criminal defense attorney right away
Your lawyer can analyze the case and determine whether the refile violates your rights. -
File a motion to dismiss if appropriate
If the refiling violates California law or procedural protections, your attorney may file a motion to dismiss. -
Review the statute of limitations
If too much time has passed since the alleged offense, the prosecution may have missed their chance to refile. -
Challenge procedural violations
The court requires prosecutors to follow certain steps when refiling. If they’ve failed to give proper notice or violated your rights, you may have a strong defense. -
Use this moment to negotiate
In some cases, a weak refile gives your attorney leverage to negotiate a better outcome—or even a full dismissal.
Examples
One-Time Dismissal of a Felony
A person is charged with felony burglary. The case is dismissed when a key witness doesn’t show up to court. Months later, the witness returns, and the DA refiles the same charges. This is allowed because it was the first dismissal and the statute of limitations hasn’t expired.
Misdemeanor Dismissed Once
Someone faces misdemeanor shoplifting charges that are dismissed after a witness refuses to testify. The DA tries to refile two months later. That refiling is not allowed under California law—one dismissal of a misdemeanor bars refiling in most cases.
Two Felony Dismissals
A person’s felony assault case is dismissed twice due to witness issues. A third attempt to file is made. The defense may argue it violates the two-dismissal rule—unless the DA can prove the dismissals were due to excusable neglect and the offense qualifies as a violent felony.
Final Thoughts
Dismissal doesn’t always mean your case is over. In California, prosecutors can sometimes refile charges—even after a dismissal—especially if the case involves a felony, a serious crime, or certain legal exceptions apply.
If your case has been refiled—or you’re concerned it could be—it’s critical to take it seriously and act fast. The law is complex, and your freedom may be at stake.
Protect Your Rights — Contact Southwest Legal Today
If your case has been dismissed and you’re unsure whether it could be refiled — or if you’ve already received notice of a refile — don’t wait to take action. Time is critical in these situations.
At Southwest Legal, our experienced California criminal defense attorneys understand the nuances of dismissal and refiling laws. We’ll assess your case, explain your options, and fight aggressively to protect your rights from unnecessary or unlawful prosecution. Call us today for a free, confidential consultation online. The sooner you act, the stronger your defense will be.
