STATE OF FLORIDA, APPELLANT,
v.
DAVID PEREZ ET AL., APPELLEES
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The court held that dismissal was an abuse of discretion for defendants who waived speedy trial, as prejudice could not be shown.
The state appealed dismissal orders granted due to discovery violations. Five defendants had waived their speedy trial rights.…
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DANAHY, Judge.
The state appeals from orders of dismissal entered by the trial judge on motions to dismiss filed by all defendants. The trial court granted the motions after finding that each defendant had been prejudiced by the state’s failure to comply with discovery. But the state contends in part that certain defendants are not able to show prejudice from the state’s violation of the discovery rules because those defendants have filed waivers of the speedy trial time. We agree with the state’s contentions.
Five of the defendants, Antonio Avila, Carlos Serrano, Luis Perez, Jorge Luis Escorcia and Alberto Cortez, filed waivers of speedy trial. Nonetheless, the trial court granted their motion to dismiss on the basis of a finding of prejudice arising out of the state’s failure to comply with discovery rules. We find that the granting of the motion to dismiss as to these five defendants was an abuse of discretion. Dismissal is an extreme sanction which should be imposed only when less severe sanctions would not accomplish the desired result. State v. King, 372 So. 2d 1126 (Fla. 2d DCA 1979). Although the waiver of speedy trial time does not excuse the state’s discovery violations, it does prevent these five defendants from showing sufficient prejudice to justify the dismissal. Since Avila, Serrano, Perez, Escorcia and Cortez had all filed waivers of speedy trial, a more appropriate sanction, among others available to the court, would have been the continuance of the trial for a period of time sufficient to allow the defendants to obtain discovery and prepare for trial. Since lesser sanctions could have been imposed to remedy any prejudice there might be to these defendants, dismissal was too harsh.
The dismissal of the charges against Antonio Avila, Carlos Serrano, Luis Perez, Jorge Luis Escorcia, and Alberto Cortez is reversed. The orders dismissing the charges against the remaining defendants are affirmed.
OTT, Acting C. J., and RYDER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. del Gaudio, 445 So. 2d 605 (Fla. 3d DCA 1984)…on of the speedy trial period); State v. Lowe, 398 So. 2d 962 (reversing dismissal; continuance appropriate sanction where State furnished discovery on eve of trial, and three weeks remained before expiration of speedy trial period); State v. Perez, 383 So. 2d 923 (Fla. 2d DCA 1980) (reversing dismissal; continuance appropriate sanction as to those defendants who had waived speedy trial rights); State v. King, 372 So. 2d 1126 (vacating dismissal; continuance appropriate sanction where, although State inexcusa…
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State v. Lowe, 398 So. 2d 962 (Fla. 4th DCA 1981)…discretion. However, dismissal of serious criminal charges or discharge of a defendant in a criminal case is an action of such magnitude that resort to such a sanction should only be had when no viable alternative exists. See, e. g., State v. Perez, 383 So. 2d 923 (Fla. 2d DCA 1980). In this case, Lowe had finally obtained the material he sought, albeit right on the eve of trial.2 At least three weeks remained before the speedy trial time expired and the State suggested to the trial judge that the defendant b…
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State v. Roy Ozzie Banks, 418 So. 2d 1059 (Fla. 2d DCA 1982)…of charges against a defendant is an extreme sanction and one that should be utilized with caution and only when a lesser sanction would not accomplish the desired result. State v. Smith, 342 So. 2d 1094 (Fla. 2d DCA 1977). Accord, State v. Perez, 383 So. 2d 923 (Fla. 2d. DCA 1980). Here the speedy trial time did not expire until March 2, 1982, so that, as in State v. Lowe, 398 So. 2d 962 (Fla. 4th DCA 1981), a continuance was a viable alternative, since appellee would have had [*1061] seven days from the d…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- PAN Am. Bank OF Orlando v. Anne J. Yanow, 372 So. 2d 1126 (Fla. 4th DCA 1979)
- State v. O. C. "Sonny" King, 372 So. 2d 1126 (Fla. 2d DCA 1979)