PROVIDENCE — A judge yesterday dismissed felony charges filed against 115 teenagers during the 130 days when the state prosecuted 17-year-olds as adults, but he refused to dismiss the second-degree murder indictment of the state’s most high-profile “gap kid,” Barrington’s Ryan Greenberg.

Instead, Superior Court Judge Daniel A. Procaccini held Greenberg’s indictment and three other indictments “in abeyance” pending Family Court hearings on whether those teens should be sent back to Superior Court and tried as adults. He said dismissing the indictments would produce an inappropriate and “drastic” result, while dismissing the other charges would not.

“The Greenberg indictment, which is the product of a lengthy grand jury proceeding, consisting of approximately 20 witnesses and 30 exhibits, unquestionably illustrates the drastic consequences and inherent unfairness that would result from a dismissal,” Procaccini wrote.

Greenberg, 17, of Lamson Road, has been indicted on a charge of second-degree murder in connection with the July 17 boating death of another Barrington teen, Patrick Murphy.

In his 39-page ruling, Procaccini said, “The legislature’s short-lived decision to subject 17-year-olds to Superior Court jurisdiction was constitutional in all respects.”

But he concluded that Superior Court never obtained jurisdiction over “gap kids” charged with felonies, saying those 17-year-olds should have had hearings in Family Court to determine if there was probable cause to charge them with crimes in Superior Court.

“It is apparent,” Procaccini wrote, “that defendants’ rights were violated by their direct placement in the adult criminal system.”

At the attorney general’s request, Procaccini agreed to put his ruling on hold for 20 days so prosecutors can appeal to the state Supreme Court. But at the public defender’s request, the judge also agreed to reconsider the 20-day stay during a hearing this morning.

In July, the General Assembly adopted Governor Carcieri’s budget proposal to save money by treating 17-year-olds as adults in criminal matters, assuming that the Adult Correctional Institutions would prove cheaper than the Training School. But that savings turned out to be questionable, at best, and on Nov. 7 the legislature repealed the law. The repeal was not retroactive, however, so that created a population of about 500 teenagers charged as adults between July 1 and Nov. 8.

Most faced misdemeanor charges. But in November, the District Court’s top judge decided to send many of those cases to Family Court. The attorney general has appealed that decision.

Chief public defender John J. Hardiman argued that the 17-year-olds facing felonies should also be sent to Family Court, saying the state had violated their constitutional rights to equal protection and due process.

Procaccini said courts must uphold the constitutionality of legislative action if there’s any reasonable basis to justify it. “This court cannot deny that producing a balanced budget is a legitimate state objective with far-reaching implications for the public welfare,” he wrote. “This court must remind defendants that a legislature’s miscalculation does not render the resulting legislation unconstitutional.”

But Procaccini said that before Superior Court could obtain jurisdiction over them, these teens should have been brought to Family Court on delinquency petitions and had probable-cause hearings. Noting that the July legislation said 17-year-olds “shall be referred” to adult courts, he said, “To ‘refer’ implies a transfer of a juvenile’s felony case only upon a finding that probable cause exists to craft a criminal complaint in the Superior Court.”

Procaccini said he would not dismiss any pending indictments involving “gap kids,” however, because he wanted to avoid the type of “inappropriate grant of drastic relief” referred to in a Supreme Court case, State v. Mastracchio.

“If indictments filed against these defendants were dismissed, the court would be unwinding a procedural trail that enveloped not only alleged victims and their families, but also grand jury participants, the defendants themselves, and the state,” he wrote.

Attorney General Patrick C. Lynch issued a statement, saying, “Although we appreciate the Superior Court’s scholarly analysis and overview of this issue, we respectfully disagree with the court’s finding that the Family Court has jurisdiction over these so-called gap kids. Based on the laws enacted, we believe that jurisdiction of these cases belongs to the Superior Court.”

Lynch said, “This decision effectively puts these cases in limbo and risks their outright dismissal. This state of uncertainty is not fair to victims and their families and also not fair to the broader Rhode Island community.” He said his office filed an appeal notice with the Supreme Court yesterday afternoon, and he is seeking “clear and decisive guidance as to how 17-year-old offenders should be handled by law enforcement, by this office, and ultimately by the courts.”

Hardiman said he was pleased with the ruling. Greenberg’s lawyer, William C. Dimitri, declined to comment.

efitzpat@projo.com