
    State of Connecticut v. Paul O’Bright
    (5405)
    Spallone, Bieluch and Nokcott, Js.
    
      Argued January 21 —
    decision released March 29, 1988
    
      Mitchell Brody, deputy assistant state’s attorney, with whom was, James G. Clark, assistant state’s attorney, and, on the brief, John M. Massameno, assistant state’s attorney, for the appellant (state).
    
      Hubert J. Santos, for the appellee (defendant).
   Norcott, J.

The state appeals from the trial court’s order granting the defendant’s motion to dismiss. The sole issue on appeal is whether a trial court order purporting to dismiss an information and discharge the defendant was a dismissal with prejudice that would preclude reprosecution of the defendant for the same offense. We find that it does not and, therefore, we find error.

The relevant facts in this appeal are not in dispute. The defendant was charged by information with promoting prostitution in the second degree in violation of General Statutes § 53a-87 (a) (1). On October 4, 1985, the trial court, Susco, J., granted the defendant’s motion to dismiss on the basis that the affidavit in support of the arrest warrant failed to establish probable cause. The trial court stated, “Fve reviewed your motion to dismiss, as well as the affidavit which accompanied the warrant, and I will grant your motion. The charges are dismissed, and the defendant is discharged.” The court did not state whether the dismissal was with or without prejudice as was required by Practice Book § 819, which has since been repealed. Neither the state nor the defendant asked for articulation of this order, and the state did not object to the granting of the motion.

Thereafter, the state obtained a second arrest warrant and recharged the defendant with the same offense. The trial court judge who had granted the original motion to dismiss signed the second warrant. On July 31, 1986, the second trial court, Brennan, J., granted the defendant’s motion to dismiss the new information with prejudice construing the first trial court’s dismissal to have been “with prejudice.” The court also concluded that the state had waived its right to appeal the first dismissal.

We first note that the state requests that we hear this appeal under the plain error doctrine. We find it unnecessary to resort to plain error review, however, because we find that the matter was fully adjudicated in the trial court. The defendant raised the issue of whether the first dismissal was a dismissal with prejudice, and the trial court dealt conclusively with that issue in its memorandum of decision. After the motion to dismiss was granted, the state acted properly in seeking permission to appeal the dismissal and then filing an appeal with this court. Practice Book § 819, since repealed. Accordingly, we find that the matter is properly before this court.

In State v. Fleming, 198 Conn. 255, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), our Supreme Court held that “an illegal arrest imposes no jurisdictional barrier to a defendant’s subsequent prosecution.” In this case, the first trial court clearly found that the initial arrest was illegal in that it was not supported by probable cause. If the arrest itself could not bar a subsequent prosecution of the defendant, we fail to see how a dismissal premised on that arrest'would impose a jurisdictional barrier to the filing of a second information against the defendant.

Furthermore, we find that even without the authority of State v. Fleming, supra, there exists no persuasive legal authority for the trial court’s conclusion that a dismissal coupled with a “discharge” is the equivalent of a dismissal “with prejudice.” A discharge is merely the act by which the defendant is set at liberty. Black’s Law Dictionary (5th Ed. 1983). Setting the defendant at liberty following a dismissal of the charges against him does not bar reprosecution of that defendant. See, Commonwealth v. Cartagena, 482 Pa. 6, 14-15, 393 A.2d 350, 354 (1978).

.There is error. The order granting the defendant’s motion to dismiss with prejudice is vacated and the case is remanded to the trial court with instructions to reinstate the information.

In this opinion the judges concurred. 
      
       Prior to its repeal in 1987, Practice Book § 819 provided: “If the judicial authority grants a motion to dismiss, he shall specify whether the dismissal is with or without prejudice. If the dismissal is with prejudice, the defendant shall be released, and the prosecuting authority may, where he is entitled by law, appeal the dismissal in the same manner and to the same effect as appeals from final judgments in criminal prosecutions. If the dismissal is without prejudice, the defendant shall be released, but the dismissal shall not be a bar to further prosecution for the same offense or offenses.”
     
      
       Even though we find the use of the plain error doctrine unnecessary for our consideration of the present appeal, we note that the appeal would qualify under the standards of that doctrine recently repeated in State v. 
        Scott, 10 Conn. App. 347, 353, 522 A.2d 1245, cert. denied, 204 Conn. 804-805, 528 A.2d 1152 (1987) and State v. Harris, 10 Conn. App. 217, 230, 522 A.2d 323 (1987).
     
      
       We also note that the first trial court clearly did not intend its dismissal to be “with prejudice.” This is indicated by the fact that the same court signed the second arrest warrant for the defendant.
     