Bracey

On these facts: a felony probationer, in violation of the terms of probation, commits a new offense; the prosecutor files felony criminal charges for the new offense; while a probation revocation hearing is pending, the prosecutor voluntarily dismisses the new case; after hearing, probation is revoked and reinstated without imposition of a prison commitment; the prosecutor refiles felony criminal charges for the new offense; we hold that a presumption of “vindictive prosecution” does not arise and, absent evidence of actual vindictiveness, the probationer’s due process rights have not been violated.

Procedural History

This is a People’s appeal from a superior court order dismissing the instant prosecution in furtherance of justice. (Pen. Code, § 1385, subd. (a). )

On February 14, 1991, defendant and respondent William Henry Bracey, having pleaded guilty to a violation of Health and Safety Code section 11350 in Kern County case No. 43718A, was placed on three years’ probation, including nine months of jail time. Among the stated probation conditions were that Bracey “refrain from further violations of the law” and that he “refrain from the use and possession of, nor…