STATE OF FLORIDA, APPELLANT,
v.
TOMMY T. KAHMKE, APPELLEE; STATE OF FLORIDA, APPELLANT, V. ALLAN LEO TOON, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The State of Florida appealed the dismissal of drug-sale charges against Kahmke and Toon after the trial court excluded key Navy witnesses and then dismissed new informations filed after a nolle prosequi. The appellate court reversed, holding that the State's right to enter a nolle prosequi is discretionary and not subject to sanctions, and that witness exclusions do not carry over to subsequent proceedings.
The State had an absolute right to file a nolle prosequi at any time prior to jury impanelment, and the trial court abused its discretion in dismissing the new informations based on the State's exercise of this right. Witness exclusion sanctions do not carry over to new proceedings, though the State must comply with any applicable discovery orders.
[1] A nolle prosequi may be filed at any time prior to the swearing in of the jury.
[2] The decision to file a nolle prosequi is within the sole discretion of the State and does not require the permission of the trial court.
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“A nolle prosequi may be filed at any time prior to the swearing in of the jury.”
Establishes the timing requirement for the State's right to nolle prosequi
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKahmke and Toon were charged in separate informations with LSD sales in Duval County. Two key State witnesses employed by the United States Navy Inves…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Witness Availability cases and more on FLexlaw
SHIVERS, Judge.
The State appeals dismissal of information filed against each defendant. The appeal also raises, inter alia, the trial court’s rulings on pretrial matters.
These cases were consolidated for oral argument as the point on appeal in each case is identical.
The defendants were charged in separate informations with the sale of lysergic acid diethylamide (LSD) in Duval County. Two key State witnesses were employed by the United States Navy Investigative Services (USNIS), but were shortly thereafter transferred from Duval County. Although the State attempted to furnish the defendants with current addresses and make the witnesses available for discovery, on the trial date, the defendants had not been able to depose these witnesses and the witnesses were not present. The trial court continued the case for one day at the State’s request. The following day the trial court refused to continue the case for one week so the State could make these witnesses available, and granted the defendants’ motions to exclude the testimony of these witnesses. The State thereupon entered a nolle prosequi (nolle prosse) in each case.
Three days later the State filed informa-tions against each of these defendants, the same as those originally filed.
The defendants moved for a dismissal or imposition of sanctions at the arraignment, arguing that the State had in effect granted itself a continuance. The trial court agreed and dismissed the informations.
The State appeals the dismissal of the new informations and also asserts the trial court abused its discretion in denying the State’s motion for a continuance and in granting the defendants’ motions for sanctions.
The State had a right to nolle prosse. A nolle prosequi may be filed at any time prior to the swearing in of the jury. State v. Sokol, 208 So. 2d 156 (Fla. 3d DCA 1968). State v. Braden, 375 So. 2d 49 (Fla. 2d DCA 1979). Permission of the trial court is not necessary, because the decision to file a nolle prosse is within the sole discretion of the State. State v. Braden, supra, at 50; and State v. Wells, 277 So. 2d 543 (Fla. 3d DCA 1973).
Since the actions of the State were authorized, it was an abuse of discretion to dismiss the informations.
The sanctions excluding the witnesses do not carry over to the new proceedings, but the State is required to comply with any appropriate discovery orders which may be entered.
The dismissal of each case is reversed and remanded for further proceedings.
REVERSED and REMANDED.
BOOTH and ZEHMER, JJ., concur.
SHIVERS, Judge.
Appellee Toon has called our attention to the statement in our opinion that Mr. Toon moved for imposition of sanctions at ar-' raignment on the second informations filed after the first informations were nolle prossed. Mr. Toon correctly asserts that he successfully moved to dismiss the second information at that time, but did not, at that time (May 3, 1984), request the imposition of sanctions. Mr. Toon’s motion for the imposition of sanctions against the State was made on April 24, 1984, immediately following the trial court’s denial of the State’s motion for continuance.
With this correction, we adhere to our original opinion and the motion for rehearing is DENIED.
BOOTH and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Barnett v. Antonacci, 122 So. 3d 400 (Fla. 4th DCA 2013)…prosse is vested solely in the discretion of the state.”) (footnote omitted); Wilkins v. State, 90 So. 3d 305, 306 (Fla. 1st DCA 2012) (“[T]he decision to nolle prose a cause is within the sole discretion of the State ....”) (citing State v. Kahmke, 468 So. 2d 284, 285 (Fla. 1st DCA 1985)). The discretionary power of a prosecutor “in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause.” Cox, 342 F. 2d at 171…
-
Lyndal Kenneth Wilkins v. State, 90 So. 3d 305 (Fla. 1st DCA 2012)…heless, after Appellant accepted the State’s plea, the trial court adjudicated Appellant guilty of count II and imposed a sentence for this count. The State may file a nolle prosequi at any time prior to the swearing in of the jury. State v. Kahmke, 468 So. 2d 284, 285 (Fla. 1st DCA 1985). In addition, since the decision to nolle prosse a cause is within the sole discretion of the State, it may do so without the permission of the trial court. Id. Consequently, “a ‘nolle prosequi effectively ends the proceedin…
-
State v. M.J.B., 576 So. 2d 966 (Fla. 5th DCA 1991)…or to the swearing of the jury or presentation of the evidence. Since the decision to nol pros is within the state’s discretion, permission of the trial court is not necessary. See State v. Padron, 506 So. 2d 462 (Fla. 2d DCA 1987); State v. Kahmke, 468 So. 2d 284 (Fla. 1st DCA 1985). Padrón and Kahmke are factually similar to the case in question. In Padrón, the state’s motion for a continuance was denied. The state nol prossed and the defendant moved for a dismissal. After the trial court discerned that th…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Braden, 375 So. 2d 49 (Fla. 2d DCA 1979)
- State v. Sokol, 208 So. 2d 156 (Fla. 3d DCA 1968)
- State v. Wells, 277 So. 2d 543 (Fla. 3d DCA 1973)