STATE OF FLORIDA, APPELLANT,
v.
WALTER EUGENE EVANS, APPELLEE
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Florida appealed the trial court's dismissal of a robbery information for lack of prosecution. The appellate court held that dismissal was an abuse of discretion because the trial court had less drastic alternatives available, particularly denying the state's continuance motion and forcing trial to proceed.
The trial court abused its discretion in dismissing the case. Dismissal of criminal charges is a sanction of such magnitude that it should only be used when no viable alternative exists. The trial court could have denied the continuance motion, forcing the state to either proceed to trial or enter a nolle prosequi.
[1] 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.
[2] A trial court abuses its discretion by dismissing a criminal case for lack of prosecution when it could have proceeded to trial by denying a motion for continuance.
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Join FLexlaw to unlock all legal intelligence“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."”
Establishes the legal standard that dismissal is an extreme sanction requiring absence of alternatives
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Join FLexlaw to unlock all legal intelligenceEvans was arraigned for robbery with a 180-day speedy trial deadline of September 13, 1981. The trial date of August 6, 1981 was set after three conti…
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PER CURIAM.
The state appeals the dismissal of a robbery information for lack of prosecution. Under the facts of this case, we believe the trial court abused its discretion in dismissing. Thus, we reverse.
Evans was arraigned for robbery. The trial date was continued once at the defendant’s behest and twice at the state’s. After the third continuance, a trial date of August 6, 1981, was set. The 180 day speedy trial period was due to expire on September 13, 1981.
On August 6th, both the state and the defense announced ready for trial. The state then sought another continuance, claiming unavailability of a witness. The trial judge indicated his doubts that the state was ready for trial and, without a defense motion, dismissed the action for lack of prosecution. The state immediately objected, again stressing its willingness to proceed to trial. The trial court adhered to its earlier ruling, but did grant a motion to extend speedy trial time pending appeal.
In State v. Lowe, 398 So. 2d 962 (Fla. 4th DCA 1981), the prosecutor failed to comply with certain discovery orders until the eve of trial. Three weeks remained before speedy trial time expired. The state moved for a continuance. The trial court denied the motion and dismissed the case. On appeal, we noted the wide discretion accorded to trial courts in sanctioning discovery 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 the option to nol-pros or it could have attempted to make its case without the unavailable witness. In any event, dismissal was unwarranted.
The defendant’s reliance on State v. Alvarez, 258 So. 2d 24 (Fla. 3d DCA 1972), is misplaced. In Alvarez, the trial court’s dismissal came after more than a year of prosecutorial foot dragging. The instant case is not analogous.
REVERSED and REMANDED.
ANSTEAD, HURLEY and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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State v. S.M.F., 546 So. 2d 20 (Fla. 3d DCA 1989)…State could have: 1) entered a nolle prosequi to the charges, having the ability to re-file at some later time; or 2) proceeded to trial then and there without its two witnesses. State v. Wilson, 498 So. 2d 1053 (Fla. 4th DCA 1986); State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982). Of course, neither of these two options will relieve the State from its speedy trial requirements, nor alter its burden of proof. Should the State decide to proceed to trial and fail to present a prima facie case, the charges co…
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State v. Wilson, 498 So. 2d 1053 (Fla. 4th DCA 1986)…t ready because the victim had moved over the weekend and could not be located. The trial court, over the state’s objection, granted appellee’s motion for a dismissal on grounds of lack of prosecution. We reverse on the authority of State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982). In Evans, we said: [W]e 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 [*1054] t…
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State v. Anton Ottrock, 573 So. 2d 169 (Fla. 4th DCA 1991)…. The state objected to the defense motion to dismiss and requested its first continuance. The trial court elected to dismiss the charges. While we sympathize with the 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…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Lowe, 398 So. 2d 962 (Fla. 4th DCA 1981)
- State v. Dane Montel Hamilton, 387 So. 2d 555 (Fla. 2d DCA 1980)
- State v. Alvarez, 258 So. 2d 24 (Fla. 3d DCA 1972)