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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12044
________________________
D.C. Docket No. 1:11-cr-20613-JLK-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
URI AMMAR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 29, 2016)
Before WILSON, JULIE CARNES, and EBEL, * Circuit Judges.
WILSON, Circuit Judge:
*
Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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Uri Ammar appeals his convictions and total sentence of life imprisonment
after a jury found him guilty of robbery, conspiracy to commit robbery, and using
or carrying a firearm in relation to a crime of violence. Ammar contends that the
district court erred by failing to dismiss his indictment pursuant to the Speedy Trial
Act, 18 U.S.C. §§ 3161–3174. Given the Supreme Court’s controlling decision in
Zedner v. United States, 547 U.S. 489, 126 S. Ct. 1976 (2006), we agree and
conclude that, in granting a one-year continuance, the district court failed to
comply with the Speedy Trial Act. Accordingly, the indictment must be
dismissed. We reverse and remand for the district court to consider whether the
dismissal should be with or without prejudice.
I. THE SPEEDY TRIAL ACT
The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy . . . trial.” U.S. Const. amend. VI. To
strengthen this constitutional mandate, Congress passed the Speedy Trial Act. The
Act provides that the trial of any defendant who pleads not guilty must begin
within 70 days of either the filing of the indictment or the date the defendant first
appears before a judicial officer to answer the charges, whichever occurs later. See
18 U.S.C. § 3161(c)(1). If a defendant is not tried within that window of time, then
the district court must grant the defendant’s motion to dismiss the indictment. See
2
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id. § 3162(a)(2). However, the 70-day time period may be tolled for certain
statutorily enumerated reasons. 1
Relevant here, a district court may grant a continuance of the trial date when
the “ends of justice” support the continuance. See id. § 3161(h)(7)(A). To do so,
the district court must consider certain factors, such as whether the failure to grant
the continuance would “result in a miscarriage of justice,” id. § 3161(h)(7)(B)(i);
whether due to the nature of the case (or other factors), the case is too complex to
reasonably expect adequate preparation within the Speedy Trial Act’s time limits,
id. § 3161(h)(7)(B)(ii); or whether a refusal to continue the case would deny the
defendant “reasonable time to obtain counsel,” or would unreasonably deny either
party time for “effective preparation,” id. § 3161(h)(7)(B)(iv).
After considering these statutory factors, the district court is required to
“set[] forth, in the record of the case, either orally or in writing, its reasons for
finding that the ends of justice served by the granting of [a] continuance outweigh
the best interests of the public and the defendant in a speedy trial.” Id. §
3161(h)(7)(A). Considering this provision, the Supreme Court found in Zedner
that “the Act requires express findings,” and “without on-the-record findings, there
can be no exclusion” of time past the 70-day requirement because the Speedy Trial
1
The Speedy Trial Act specifically lists seven separate periods of delay that may be
excluded from the 70-day requirement. See 18 U.S.C. § 3161(h). Only the seventh, the catch-all
“ends of justice” continuance, is at issue in this case.
3
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Act, with “procedural strictness,” “demands on-the-record [ends-of-justice]
findings.” 547 U.S. at 506–07, 509, 126 S. Ct. at 1989, 1990. 2
Moreover, a defendant’s agreement to waive the protections of the Act
cannot, by itself, justify an ends-of-justice continuance because the public interest
in a speedy trial is also protected by the Act. 3 See id. at 500–01, 126 S. Ct. at 1985
(finding that a defendant cannot simply waive or “opt out of the Act”); United
States v. Mathurin, 690 F.3d 1236, 1242 (11th Cir. 2012). The best interests of the
parties—and even those of the court—cannot alone justify deviation from the Act’s
requirements, absent the determination that those interests outweigh the public
interest. “[T]he Act was designed with the public interest firmly in mind,” and
“there are many cases . . . in which the prosecution, the defense, and the court
would all be happy to opt out of the Act, to the detriment of the public interest.”
Zedner, 547 U.S. at 501–02, 126 S. Ct. at 1985–86.
Accordingly, Zedner held that agreement by the parties cannot be the only
basis for granting a continuance. A finding that a continuance is justified solely
2
The Zedner Court, interpreting an older version of the Act, refers to the pertinent
section as § 3161(h)(8). In a 2008 amendment, this section was redesignated as (h)(7). Pub. L.
No. 110–406 § 13(3) (2008). The text of the statutory section did not change.
3
To be clear, a defendant cannot waive the Act’s timeliness requirements. The district
court bears the burden of making ends-of-justice findings and placing them on the record
irrespective of the defendant’s agreement to a delay. See Zedner, 547 U.S. at 506–07, 126 S. Ct.
at 1988–89. However, a defendant may waive his or her right to dismissal of the indictment
premised on a violation of the Act by failing to move for dismissal prior to trial. See 18 U.S.C. §
3162(a)(2). Here, Ammar timely moved for dismissal based on the Speedy Trial Act violation.
Thus, the waiver provision does not apply.
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because the parties agreed to it is not a proper ends-of-justice finding. The district
court must make “on-the-record findings that the ends of justice served by granting
the continuance outweigh” the defendant’s and the public’s interests in a speedy
trial. See id. at 498–99, 126 S. Ct. at 1984.
The Act does not stipulate when the district court must make these findings;
that is, whether the findings must be made contemporaneously with the granting of
an ends-of-justice continuance. See id. at 506–07, 126 S. Ct. at 1989 (“Although
the Act is clear that the findings must be made, if only in the judge’s mind, before
granting the continuance . . . the Act is ambiguous on precisely when those
findings must be set forth, in the record of the case.” (alterations adopted and
internal quotation marks omitted)). However, the Zedner Court opined that a trial
court should put its findings regarding an ends-of-justice continuance on the record
at least by the time it rules on the defendant’s motion to dismiss for a speedy trial
violation. Id. at 507 & n.7, 126 S. Ct. at 1989 & n.7 (noting that the “best practice”
is for the court to state the reasons simultaneously when granting the continuance).
Thus, we look to see whether the district court considered the relevant factors and
placed its ends-of-justice findings on the record when it continued Ammar’s trial
beyond the Act’s 70-day timeframe, or, at the latest, by the time it ruled on
Ammar’s motion to dismiss for a speedy trial violation.
5
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II. BACKGROUND
In this case, the clock for the 70-day calculation began on September 1,
2011, when a federal grand jury returned an indictment against Ammar and four
others for their involvement in the armed robbery and killing of a Brink’s money
courier. 4 Ammar pleaded not guilty, and a magistrate judge ordered Ammar
detained pending trial. Subsequently, on September 13, 2011, the district court
held a scheduling conference with Ammar, his codefendants, and the government
to discuss the trial date. The same day, the court entered an order scheduling trial
to begin October 9, 2012.
Ammar then appealed the magistrate judge’s detention order, contending
that the district court had set an extended trial date over his objection and that
detention pending a trial set for more than a year from the date of the indictment
violated his due process and speedy trial rights. However, the district court denied
the appeal on December 1, 2011. Over a year after the original indictment, on
September 17, 2012, a federal grand jury returned a four-count superseding
indictment against Ammar. 5 Ammar moved to dismiss the indictment pursuant to
4
Ammar appeared before the court on the charges contained in the complaint before he
was first indicted. Accordingly, the indictment date—the later of the two—is the point at which
the 70-day period began to run. See 18 U.S.C. § 3161(c)(1).
5
The superseding indictment rearranged Ammar’s charges, splitting what was originally
styled as one count into two separate counts. Therefore, the “superseding indictment do[es] not
reset the speedy-trial timetable.” See United States v. Jones, 601 F.3d 1247, 1254 (11th Cir.
2010).
6
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the Speedy Trial Act, which the government opposed. The district court
considered the matter at a calendar call on October 4, 2012. After hearing from
both parties, the court denied Ammar’s motion during the calendar call.
On the first day of trial, Ammar again raised his motion to dismiss pursuant
to the Speedy Trial Act. The court denied the motion and the case proceeded to
trial. At the conclusion of the trial, the jury returned a verdict of guilty as to three
counts and not guilty as to one count. Thereafter, the district court sentenced
Ammar to life imprisonment. Ammar timely appealed, raising issues regarding the
timeliness of trial, his conviction, and sentencing. We address only his claim
under the Speedy Trial Act because we find that this threshold issue is dispositive.
We review de novo the denial of Ammar’s motion to dismiss based on a
violation of the Speedy Trial Act, and any factual determinations by the district
court with regard to excludable time receive clear error review. See United States
v. Harris, 376 F.3d 1282, 1286 (11th Cir. 2004). We must determine whether any
time between Ammar’s indictment on September 1, 2011, and the start of
Ammar’s trial on October 9, 2012, can be excluded, bringing Ammar’s trial within
the Act’s 70-day requirement. Crucial to this inquiry is whether the district court
weighed the relevant interests and made the necessary ends-of-justice findings on
the record. See Zedner, 547 U.S. at 507, 509, 126 S. Ct. at 1989, 1990. These
findings may be oral or written. Therefore, we look to both the conversations at
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the hearings before the district court and to written parts of the record. Here, the
parties point to two dates in the record: the September 2011 scheduling hearing and
order setting the trial date and the October 2012 calendar call denying Ammar’s
motion to dismiss. We describe both instances before turning to our analysis.
A. September 2011 Scheduling Hearing and Order
On September 13, 2011, the district court heard from the parties at a
scheduling conference and then, on the same day, entered its order scheduling trial
for a year later. At the hearing, the government informed the court that Ammar
and his co-defendants were charged with crimes for which they could face the
death penalty, and the Department of Justice (DOJ) would need between five
months and one year to determine whether to seek that option. The DOJ’s death
penalty process included a step in which the defendants could present mitigating
factors. Some co-defendants therefore requested a lengthy continuance to afford
them time to prepare such a presentation. Concurring with these defendants’
request for a delayed trial date, the government requested a trial date one year out.
In contrast, Ammar stated that he did not believe the government would seek
the death penalty against him. For this reason, he believed he could be ready to
make his presentation within thirty days. In addition, Ammar opposed a lengthy
continuance because he remained in custody and the district court had not granted
his request for bond. As such, Ammar was unwilling to agree to the lengthy
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continuance sought by some of his co-defendants. Instead, he asked for a
December 2011 trial date, or in the alternative, that the district court review the
magistrate judge’s decision regarding pretrial detention.
After the hearing, the district court issued a written order setting the case for
trial. The order stated that the court had been advised during the discussion the
same day “that a reasonable time allowance of approximately one year would be
necessary for the parties to implement the newly-amended death policy procedures
in order to permit careful consideration by the [DOJ] of whether or not this case
will proceed to trial as a ‘death case.’” It also noted that “[s]everal defense counsel
advised the Court that there are other procedures that will be necessary for court-
appointed counsel to follow to obtain approval from the Eleventh Circuit Court of
Appeals for a budget to handle a potential death case,” while others “indicated that
they were opposed to a trial date set so far in the future.” The order concluded:
“After a thorough discussion, it became apparent that the Court’s best efforts to get
this case tried under its normal procedures of setting conflict-free trial dates within
approximately 90–120 days is not a reasonable objective.” The court then directed
the clerk of court to schedule the trial for October 9, 2012.
B. October 2012 Calendar Call
On October 3, 2012, Ammar moved to dismiss the September 17, 2012
superseding indictment pursuant to the Speedy Trial Act. He noted that unless the
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continuance granted by the court was excludable, the trial had not commenced
within the 70 days required by the Act. Citing Zedner, he further noted that the
fact that some defendants had agreed to the continuance was not sufficient, by
itself, to comply with the Speedy Trial Act. Instead, the Act requires that, for all
ends-of-justice continuances, the court make the appropriate findings set out in the
statute.
The government opposed the motion. The government acknowledged that
the court had not used the phrase “ends of justice” in its order granting the
continuance nor had it even mentioned the Speedy Trial Act, but it argued that the
court had performed the balancing of interests required by § 3161(h)(7)(A).
Moreover, the government noted that, prior to ruling on the motion to dismiss, the
court would be permitted to explicitly make the necessary ends-of-justice findings.
The government requested that the court make those findings, which it contended
were supported by the reasons for a continuance offered at the September 13, 2011
status conference.
The district court addressed the matter at a calendar call on October 4, 2012.
The court first stated that the trial date was “by agreement of everybody.” Ammar
corrected the court, replying that he had requested that trial be set for December
2011. The court then stated that the delay “was caused by this death penalty
statute and the law pertaining to setting trials.” Ammar explained that the district
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court’s order setting the trial date did not “set forth excludable time in the public
[sic] best interest or in the interest of the defendant.” The court responded, “I
asked each of you if you agreed to this, and everybody said yes,” and “[e]verybody
knew they were waiving the Speedy Trial Act.”
Although the government stated that it believed the court had engaged in the
necessary balancing of factors and that the court was not required to “use some
magic words, [like] the words ‘ends of justice,’” the government again requested
that the court make an explicit ends-of-justice finding. Specifically, the
government requested the court to hold “that when [it] issued that order it was in
the ends of justice.” The court replied, “At the end of the day, if they all agree to
[the trial date], that’s always been adequate.” The court disagreed that it had to say
any words other than what date it was setting the trial. Further, the court opined
that it had been Ammar’s duty to advise the court if the Speedy Trial Act was
being violated and to request a trial.
The court then asked the government, “What magic words are left out of the
order that I entered? Should I put in there that [counsel for one of the co-
defendants] couldn’t go to trial on the September 15th calendar because he has a
conflict, and somebody else couldn’t go later or before?” The government
responded that it thought the court had earlier set out sufficiently the reasons for
the continuance, but it once more urged the court to make an ends-of-justice
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finding on the record, to hold “that [the continuance] outweighs the public [sic]
and the defendant’s interest in a speedy trial. That would make that time
excludable.”
The court inquired whether the government was arguing that the motion to
dismiss should be denied. The government responded, “I think if your Honor
feels it needs to be excluded and utter those magic words, you should.” The court
responded that it did not “wish to go back and change an order that [it had already]
entered, that [it] felt was perfectly acceptable, as a matter of fact agreeable with
everybody.” Moreover, the court explained, “that’s the reason I entered the order.”
The court continued, “It was in the interest of—both sides had an interest. The
government had an interest in not having to try the case two or three times or
whatever. The defendants had an interest, and we paid great sums of money to
especially hire death penalty counsel. They had a big interest in seeing if they
could persuade the [DOJ] not to seek the death penalty, which they did ultimately.
That was a big advantage to them. . . . It was fair to everybody.”
The government then stated that, “regardless of what the defendant says, the
Court can make a finding that the ends of justice outweigh—a continuance in the
interest of justice.” The court replied, “That’s why I’m overruling the defense [sic]
request to move the case forward. When I’m granting a time that everybody
wants, there’s no need for it. It’s pointless.” The court then denied Ammar’s
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motion, “in the interest of fair play in handling these cases and everything that is
reasonable and decent, the effort I put into achieving a trial date that was agreeable
to everybody and worked to everybody’s advantage.”
III. DISCUSSION
A. Speedy Trial Act Violation
Our analysis is guided by the language of the Speedy Trial Act and the
Supreme Court’s interpretation of that language in Zedner. The Act states that
delay resulting from a continuance either by the district court or at the request of a
party is excludable from the 70-day period in which the trial must begin if the court
puts on the record “its reasons for finding that the ends of justice served by the
granting of [a] continuance outweigh” the public’s and defendant’s interests in a
speedy trial. See 18 U.S.C. § 3161(h)(7)(A). Zedner makes clear that the findings
must be expressly made on the record. See 547 U.S. at 506–07, 126 S. Ct. at
1988–89 (stating that the Act, with “procedural strictness,” “demands on-the-
record findings”; thus, the district court must make “an express finding on the
record about the ends-of-justice balance” (emphasis added and internal quotation
mark omitted)). Additionally, Zedner held that the parties cannot simply agree to a
continuance and thus waive the Act’s 70-day requirement. See id. at 500–03, 126
S. Ct. at 1985–87 (finding that “mere consent or waiver” will not result in
excludable time). Hence, a court’s finding that a continuance is justified solely
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because the parties agreed to the continuance is not a proper ends-of-justice
finding. See id. at 502, 126 S. Ct. at 1986. If the district court fails to comply with
these requirements, then the resulting delay will not constitute excludable time
from the 70-day calculation.
Based on the record before us, we conclude that the district court ran afoul
of Zedner. The court stated several times that it had granted the continuance
because all of the parties had agreed to it, thereby indicating its belief that the
Speedy Trial Act could be waived. And when the government repeatedly advised
the court that the continued time period could be excluded if the court simply made
an express ends-of-justice finding, the court refused to declare that the ends of
justice supported the continuance, repeating its belief that the “parties’ agreement”
provided a sufficient reason to justify the continuance.
Specifically, during the October 2012 calendar call, the district court ruled
on Ammar’s motion to dismiss for the Speedy Trial Act violation. The court
expressed its understanding that the trial date was “by agreement of everybody,”
emphasizing repeatedly “[e]verybody knew they were waiving the Speedy Trial
Act,” and stating, “if they all agree . . . that’s always been adequate.” In fact, the
district court said it would not make the ends-of-justice findings because they were
unnecessary, stating, “When I’m granting a time that everybody wants, there’s no
need for it. It’s pointless.” The court’s repeated assertion that it did not have to
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make the ends-of-justice findings because the parties agreed to the trial date is
problematic for three reasons.
First, the district court’s assertion is factually inaccurate and thus clearly
erroneous—not all of the parties agreed to the trial date, as evidenced by Ammar’s
repeated objection to the length of the delay. Second, it is legally incorrect
because an agreement by the parties does not eliminate the requirement that the
court make a proper ends-of-justice finding. Zedner makes clear that the parties
cannot waive the Speedy Trial Act’s requirement. The district court did not
comply with this rule, as it based its decision to continue the case on the parties’
agreement. Again, the court stated to the parties: “Everybody knew they were
waiving the Speedy Trial Act,” and the date was “agreeable with everybody, and
that’s the reason I entered the order.” (emphasis added). While we do not fault a
district court, when considering a defendant’s motion to dismiss based on an
alleged Speedy Trial Act violation, for noting that the defendant had agreed to the
continuance, this agreement cannot be the sole basis for the continuance. The
court must consider both the defendant’s interest and the public’s interest in a
speedy trial. Zedner, 547 U.S. at 501, 126 S. Ct. at 1985. Third, the court did not
just fail to make an ends-of-justice finding—it refused to make this finding.
Where a district court refuses to make such a finding, notwithstanding the repeated
entreaties of the government that it do so, we are left with little choice but to
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conclude that the district court did not think that the ends of justice warranted the
continuance. Such a record makes it difficult to affirm the court’s decision here,
even if we might otherwise conclude that there were adequate reasons to justify the
continuance.
The government has argued, however, that the district court’s failure to
specifically utter the “magic words,” such as “ends of justice,” should not be
dispositive. We do not necessarily disagree with this position. But this appeal
cannot be properly characterized as a “magic words” case in which the district
court simply neglected to utter certain precise words.6 Again, when confronted
with the request to make the findings, the court expressly declined to do so, stating
that the continuance was based solely on the parties’ agreement. Thus, we need
not opine as to precisely which or specifically how many words a district court
must place on the record before the findings requirement is met. Instead, the
court’s explicit declination to make ends-of-justice findings on the record and its
stated reason for continuance are dispositive.
In sum, our review of the record leads us to conclude that the district court
did not make the proper ends-of-justice findings to permit tolling of the 70-day
6
That we recognize the possibility that a finding that fails to recite precisely the words
called for by the statute might pass muster does not mean that we encourage deviation from the
statutory language. It is simple enough for a district court to create a template that sets out
exactly the statutory words required to be used, and to recite those words to explain a
continuance that is otherwise based on the factors set out in the statute. Doing so is a prudent
step that reduces the likelihood of future litigation concerning that order.
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time period in which Ammar should have gone to trial. We hold that the Speedy
Trial Act was violated when Ammar’s trial did not begin until over a year after his
indictment.
B. Remedy
Having determined that Ammar’s rights under the Speedy Trial Act were
violated, we turn to the appropriate remedy. Once again, the plain language of the
Act controls: dismissal of Ammar’s charges is required. The Act states that, when
a trial does not begin within the required period of time, “the information or
indictment shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2)
(emphasis added). Thus, although a trial court is ordinarily given “great discretion
to make decisions concerning trial schedules and to respond to abuse and delay
where appropriate,” the Act “confines the exercise of that discretion more
narrowly, mandating dismissal of the indictment upon violation of precise time
limits, and specifying criteria to consider in deciding whether to bar
reprosecution.” United States v. Taylor, 487 U.S. 326, 343–44, 108 S. Ct. 2413,
2423 (1988). The Supreme Court specified in Zedner that, “if a judge fails to make
the requisite findings regarding the need for an ends-of-justice continuance, the
delay resulting from the continuance must be counted, and if as a result the trial
does not begin on time, the indictment or information must be dismissed.” 547
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U.S. at 508, 126 S. Ct. at 1989. The Act “does not permit those findings to be
made on remand.” 7 Id. at 506, 126 S. Ct. at 1988.
As discussed above, the district court failed to make the requisite findings,
and Ammar’s trial, which began over a year after his indictment, violated the
Speedy Trial Act’s 70-day time period. Accordingly, we reverse and remand to the
district court with instructions to dismiss the charges. This dismissal may be with
or without prejudice—we leave that determination to the district court. 8
IV. CONCLUSION
A criminal defendant’s right to a speedy trial is “one of the most basic rights
preserved by our Constitution.” Klopfer v. North Carolina, 386 U.S. 213, 226, 87
S. Ct. 988, 995 (1967). Congress chose to safeguard this important right through
the rigid procedural requirements of the Speedy Trial Act. Those requirements
were not met here. Therefore, we have no choice but to vacate Ammar’s
conviction. We reverse and remand with instructions for the district court to
dismiss the charges against Ammar and determine, after consideration of the
7
The Court expressly rejected the application of harmless-error review, finding that such
an inquiry does not “square with the Act’s categorical terms.” Zedner, 547 U.S. at 508, 126 S.
Ct. at 1989–90. This result may seem inflexible; however, as the Court found, the Act’s
requirements are intentionally procedurally strict. See id. at 509, 126 S. Ct. at 1990.
8
The Act provides the statutory factors to guide the district court in making this decision.
The court must consider, inter alia, the “seriousness of the offense,” the circumstances leading to
dismissal, and the impact that reprosecution would have on the administration of the Act and
justice. Examination of each statutory factor is necessary before the district court may conclude
that the charges should be dismissed with prejudice. See Taylor, 487 U.S. at 333, 108 S. Ct. at
2417–18.
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statutory factors enumerated in the Act, whether the dismissal should be with or
without prejudice.
REVERSED AND REMANDED.
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