STATE OF FLORIDA, APPELLANT,
v.
DANE MONTEL HAMILTON, APPELLEE
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The court held that dismissal for lack of prosecution is too extreme a sanction when there is no showing of prejudice to the defendant.
The state moved for a continuance on the day of trial because a key law enforcement witness was attending a two-week intelligence school. The state ha…
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PER CURIAM.
The state appeals from the dismissal “for lack of prosecution” of its information charging the appellee with possession of marijuana with intent to sell or deliver. The appellee failed to file a brief in this appeal but after carefully reviewing the record containing the transcript of the hearing below which resulted in the dismissal, we reverse.
The state, on the day of trial, orally moved for continuance on the ground that a law enforcement officer needed for trial was attending a two week intelligence school somewhere on the east coast of the state. The state had been granted another continuance two months previously when the case was first set for trial. That continuance was apparently necessitated when the suppression of a confession by the appellee caused the state to need a witness they did not originally anticipate using, and who, at the earlier trial date, was in Idaho. On the second trial date, when the state again moved for continuance because of the lack of the presence of the law enforcement officer attending intelligence school, two weeks remained before the time for speedy trial would have run.
While we recognize and sympathize with the apparent frustration of the trial judge with the lack of diligence of the state in preparing for trial, we believe that dismissal of an otherwise valid information is too extreme a sanction where there is no showing of prejudice or unfairness to the appellee. Cf., State v. Smith, 342 So. 2d 1094 (Fla.2d DCA 1977). The court could have properly within its discretion denied the state’s motion for continuance. If the state was then unable to prove a prima facie case because of the unavailability of the witness, a directed verdict for the appellee would have been in order. We, therefore, reverse and remand for treatment consistent with this opinion.
GRIMES, Acting C. J., and DANAHY and CAMPBELL, JJ., concur.
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State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982)…y violations. Nonetheless, we reversed, holding that dismissal of criminal charges is “an action of such magnitude that resort to such a sanction should only be had where no viable alternative exists.” 398 So. 2d 962, 963. Accord, State v. Hamilton, 387 So. 2d 555 (Fla. 2d DCA 1980). Similarly, in the instant case we are compelled to hold that dismissal was precipitous and unwarranted. The trial court could have forced the state to trial simply by denying the motion for continuance. The state would have had…
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State v. Anton Ottrock, 573 So. 2d 169 (Fla. 4th DCA 1991)…trial court’s frustration, we must reverse, holding in line with State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982), that dismissal of criminal charges is only an action of last resort where no viable alternative exists. See also State v. Hamilton, 387 So. 2d 555 (Fla. 2d DCA 1980). The trial court could have denied the motion for continuance, or issued a show cause order to require the victim’s appearance. The state then could have either gone to trial with what it had or entered a nolle prosequi to the ch…
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State v. Haynes, 463 So. 2d 1248 (Fla. 5th DCA 1985)…r absent from, court appearances and evinced little interest in the prosecution. As a result the court determined that the prosecution of the cause had been abandoned by the state, thus warranting dismissal of the information. In State v. Hamilton, 387 So. 2d 555 (Fla. 2d DCA 1980), the Second District reviewed a dismissal of an information for lack of prosecution. In Hamilton, the state, on the date of trial, orally moved for continuance on the ground that a law enforcement officer needed for the trial was…
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- State v. Smith, 342 So. 2d 1094 (Fla. 2d DCA 1977)