THE STATE OF FLORIDA, APPELLANT,
v.
JOHNNY ANDERS, APPELLEE
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Florida appeals a trial court's dismissal with prejudice of a burglary case after the state represented it was not ready for trial and declined to seek a continuance. The court held that the state's conduct constituted an invitation for dismissal, which the trial judge properly granted with prejudice, barring the state from refiling the information.
The trial court properly dismissed the new information with prejudice. The state's conduct in stating it was not ready, did not anticipate being ready, and would not request a continuance constituted a clear invitation for dismissal with prejudice. Once a case is dismissed with prejudice under these circumstances, the state is barred from refiling the information.
[1] A trial court's dismissal of a case for lack of prosecution, accompanied by language indicating intent for the dismissal to be with prejudice, bars the state from refilin…
[2] A state's failure to request a continuance or a nolle prosequi when not ready for trial invites a dismissal for lack of prosecution.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“By failing to take a nolle prosse, and explicitly declining to move for another continuance-either of which would have maintained some life in the case-the state clearly invited the court to administer the coup de grace.”
Establishes that the state's conduct constituted an invitation for dismissal with prejudice
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Join FLexlaw to unlock all legal intelligenceThe state was granted a continuance in Anders' burglary case. When the case was called for trial again, the prosecution stated it was neither ready no…
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SCHWARTZ, Judge.
After the state had been granted a continuance, Anders’ burglary case was called for trial again. On that occasion the prosecution stated that it was neither ready nor anticipated being so within the near future. By failing to take a nolle prosse, and explicitly declining to move for another continuance-either of which would have maintained some life in the case-the state clearly invited the court to administer the coup de grace. The trial judge accepted the invitation and complied. He dismissed the case for lack of prosecution and ordered the defendant discharged.1 The circumstances under which the dismissal was granted2 and the words employed by the trial court provided a “clearly identifiable manifestation that [it] intended [the dismissal to be with prejudice].” State v. Schafer, 376 So. 2d 927, 929 (Fla.2d DCA 1979).
It was consequently perfectly correct in entering the order now under review3 which dismissed, this time explicitly with prejudice, a new information which the state, having thought better of its earlier representations to the court, filed the very next day.4 See, State v. Schafter, supra, in which the court indicated at 376 So. 2d 928 that the state may not refile an information if barred “by a previous final order of dismissal with prejudice.” Compare, State v. Bacon, 385 So. 2d 1160 (Fla.2d DCA 1980) (earlier dismissal “without prejudice”); State v. Wells, 277 So. 2d 543 (Fla.3d DCA 1973) (no indication that earlier dismissal was with prejudice).
Affirmed.
. The entire colloquy is set out below.
THE COURT: Okay. The bottom of 143, Johnny Anders. MS. HOAGUE [assistant state attorney]: Your Honor, the State is not ready. THE COURT: Is Johnny Anders here? MS. HOAGUE: Yes. THE COURT: You are Johnny Anders? THE DEFENDANT: Yes. MR. WHITE [defense counsel]: Your Hon-or, on behalf of the defendant, we would ask the case be dismissed on Jack of prosecution. MS. HOAGUE: The state does not anticipate being ready in the near future. We have not had-THE COURT: You are not ready, and you do not anticipate being ready? MS. HOAGUE: The State would not be requesting a continuance at this time. MR. WHITE: We move it to be dismissed, your Honor, for lack of prosecution. THE COURT: Case is dismissed. Lack of prosecution. The defendant is discharged. (Thereupon, the proceedings were concluded.)
. If the trial judge had determined to go forward with a “trial” for which the state was not prepared, and had ordered a jury or a witness sworn, refiling would have been precluded on double jeopardy grounds. While the state’s acquiescence to a dismissal instead should be viewed, therefore, as no more than a commendable effort to save the court’s time, the end result should not be different.
. Although the propriety of the first dismissal is not specifically be fore us in this proceeding, we observe both that the court was authorized to dismiss the case with prejudice on the ground that the prosecution had been abandoned, see. State v. Alvarez, 258 So. 2d 24 (Fla.3d DCA 1972), and that the state would be barred by the invited error rule from asserting otherwise. 3 Fla.Jur.2d Appellate Review § 294 (1978). It is hardly acceptable, therefore, to permit the state to accomplish indirectly in this appeal from the later dismissal, what it could not achieve directly by challenging the first one.
.Perhaps this case may be cited for the proposition that the “gotcha!” doctrine applies not only to criminal, as well as civil cases, State v. Belien, 379 So. 2d 446 (Fla.3d DCA 1980), but to the prosecution as well as the defense. See also, State v. Weir, 380 So. 2d 1297 (Fla.3d DCA 1980), rev. denied (Fla. 1980).
Cases With Similar Vibessemantic neighbors from the corpus
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Meyer Weissman and Anna Weissman v. K-Mart Corp., 396 So. 2d 1164 (Fla. 3d DCA 1981)…bona fide termination of the proceedings. Gatto v. Publix Supermarket, Inc., supra; Jackson v. Biscayne Medical Center, Inc., 347 So. 2d 721 [*1168] (Fla. 3d DCA 1977); Davis v. McCrory Corp., 262 So. 2d 207 (Fla. 2d DCA 1972). In State v. Anders, 388 So. 2d 308 (Fla. 3d DCA 1980), this court found that the trial court’s dismissal of criminal charges against the defendant for lack of prosecution was “clearly intended” to be with prejudice (and thus a termination to the proceedings) where the prosecution was…
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State v. Haynes, 463 So. 2d 1248 (Fla. 5th DCA 1985)…able to proceed. In none of the cited cases — Alvarez, Hamilton or Evans — did the prosecution concede its inability to proceed and, at the same time, refuse to nolle prosse. In that respect, the case closest in point appears to be State v. Anders, 388 So. 2d 308 (Fla. 3d DCA 1980), review denied, 392 So. 2d 1379 (Fla.1981). In Anders, the prosecution, at time of trial, stated that it was not ready for trial and did not anticipate being ready in the near future, but did not nolle prosse and specifically decl…
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Taylor v. State, 436 So. 2d 124 (Fla. 3d DCA 1982)…istered owner of the motor vehicle which was the subject matter of the armed robbery. It should be noted further that the issue in this case, as framed by the defense, was identiñcation of the accused, not identity of the victim. . State v. Anders, 388 So. 2d 308 (Fla. 3d DCA 1980); State v. Belien, 379 So. 2d 446 (Fla. 3d DCA 1980); Salcedo v. Association Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979). . The effect of continuances upon victim and witness is well-documented by Frank Carring-ton in his sti…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weinstein v. Heyman, 379 So. 2d 446 (Fla. 3d DCA 1980)
- State v. Alvarez, 258 So. 2d 24 (Fla. 3d DCA 1972)
- State v. Schafer, 376 So. 2d 927 (Fla. 2d DCA 1979)
- State v. Wells, 277 So. 2d 543 (Fla. 3d DCA 1973)
- State v. Weir, 380 So. 2d 1297 (Fla. 3d DCA 1980)
- State v. Bacon, 385 So. 2d 1160 (Fla. 2d DCA 1980)