STATE OF FLORIDA, APPELLANT,
v.
SABRINA WILSON, APPELLEE
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The court held that dismissal for lack of prosecution was unwarranted when the state was not ready for trial due to an unavailable witness, absent prejudice or willful delay.
The state charged the appellee with grand theft and announced ready for trial. The trial court granted the appellee's motion for dismissal for lack of…
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PER CURIAM.
The state appeals from an order of dismissal for lack of prosecution. The state charged appellee with grand theft. The alleged crime was committed on December 10, 1985. The state announced ready for trial on Friday, February 28, 1986 and the trial court called the case for trial on Tuesday, March 4, 1986. The state appeared and informed the court that it was not 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 the option to nol-pros or it could have attempted to make its case without the unavailable witness. In any event, dismissal was unwarranted.
Id. at 460.
Appellee has not shown any prejudice that would have occurred had the trial court pursued any of the viable alternatives to dismissal; nor does the record demonstrate that the state’s failure to proceed at the appointed time was willful or deliberate. We reverse the order of dismissal and remand this case for further proceedings.
REVERSED and REMANDED.
DELL, WALDEN and STONE, JJ., concur.
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State v. S.M.F., 546 So. 2d 20 (Fla. 3d DCA 1989)…the trial court denied the motion for continuance the 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 an…
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State v. Mordechy Cohen, 662 So. 2d 430 (Fla. 3d DCA 1995)…for a continuance. We reverse. Criminal charges should be dismissed only as a last resort when no viable alternatives exist. State v. T.H., 592 So. 2d 759 (Fla. 5th DCA 1992); State v. Ottrock, 573 So. 2d 169 (Fla. 4th DCA 1991); State v. Wilson, 498 So. 2d 1053 (Fla. 4th DCA 1986); State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982). While a trial court has broad discretion in considering a continuance motion, State v. Lundy, 531 So. 2d 1020 (Fla. 2d DCA 1988), the trial court abused its discretion in this…
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State v. Castor Segundo Fortesa-Ruiz, 559 So. 2d 1180 (Fla. 3d DCA 1990)…lure to proceed or to produce witnesses, coupled with an alleged prejudice to the defendant. State v. Lundy, 531 So. 2d 1020 (Fla. 2d DCA 1988); State v. Thomas, 519 So. 2d 1091 (Fla. 2d DCA 1988); State v. Daise, 508 So. 2d at 560; State v. Wilson, 498 So. 2d 1053 (Fla. 4th DCA 1986); State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982); State v. Hamilton, 387 So. 2d 555 (Fla. 2d DCA 1980). In the present case, [*1183] the record reveals no abandonment, no willful or deliberate tactics to delay or hinder the pr…
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- State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982)