THE STATE OF FLORIDA, APPELLANT,
v.
FABIO GUTIERREZ, APPELLEE
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The State of Florida appealed a trial court's dismissal of drug trafficking charges against Gutierrez based on the unavailability of a confidential informant whose affidavit was the sole basis for the search warrant. The appellate court reversed, holding that dismissal was premature absent a showing that the State caused the witness's disappearance or that the loss of testimony actually prejudiced the defense.
Dismissal of the charges was premature. The court held that absent a showing that the State was responsible for the witness's disappearance and that the loss of the witness's testimony prejudiced the defense, dismissal is not warranted.
[1] Dismissal of charges is premature when a confidential informant, whose affidavit supported the search warrant, becomes unavailable, absent a showing that the state was re…
[2] The unavailability of a confidential informant, who is the sole basis for a search warrant affidavit, does not automatically warrant dismissal of charges.
Previewing 2 of 4 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“There is no showing that the State was responsible for the witness' disappearance, State v. Valdes, 443 So.2d 302 (Fla. 3d DCA 1983), and that the loss of the witness' testimony prejudiced the defense.”
Establishes the two-part test required before dismissal is proper: State responsibility for disappearance and actual prejudice to defense.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGutierrez was arrested pursuant to a search warrant obtained in circuit court based solely on an affidavit from confidential informant Cardona. Defens…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
The State of Florida appeals from an order which dismisses charges against the defendant Gutierrez for trafficking in cannabis and cocaine by possession.
The defendant’s motion to dismiss alleged:
2. The arrest of the Defendant stemmed from a search executed by Metro Dade County Police Department pursuant to a search warrant obtained in the Circuit Court of the Eleventh Judicial Circuit.
3. Said search warrant was based solely on an affidavit obtained from a confidential informant to wit: a Mr. Car-dona.
4. Cardona was then listed as a state witness in the above-styled cause.
5. Undersigned counsel on behalf of the Defendant was told by the State Attorney that Mr. Cardona, a protected witness could be subpoenaed through the State Attorney’s Office.
6. Arrangements were made with the State Attorney for the production of Mr. Cardona at the State Attorney’s Office for the purposes of taking a deposition in the instant case.
7. Prior to the deposition of Mr. Car-dona undersigned counsel was informed that Mr. Cardona had fled the jurisdiction and was no longer available as a witness in the instant matter. 8. Mr. Cardona is the sole basis on which the affidavit in support of the search warrant leading to the arrest of the Defendant was based.
We agree with the State that dismissal of the charges on the above allegations, even if true, was premature. There is no showing that the State was responsible for the witness’ disappearance, State v. Valdes, 443 So. 2d 302 (Fla. 3d DCA 1983), and that the loss of the witness’ testimony prejudiced the defense. State v. Reeves, 444 So. 2d 20 (Fla. 2d DCA 1983).
The cases relied upon by the defendant, Aldazabal v. State, 471 So. 2d 639 (Fla. 3d DCA 1985), and State v. Jones, 247 So. 2d 342 (Fla. 3d DCA 1971), are distinguishable. In Aldazabal the lost informant was the only actual participant in the crime of sale of narcotics. Similarly, in Jones, which is otherwise factually sparse, there was a finding by the court that the persons being sought were material witnesses to the crime.
Reversed and remanded with instructions to reinstate the information.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Jones, 247 So. 2d 342 (Fla. 3d DCA 1971)
- Aldazabal v. State, 471 So. 2d 639 (Fla. 3d DCA 1985)
- State v. Valdes, 443 So. 2d 302 (Fla. 3d DCA 1983)
- Gen. Ins. Co. v. Vladimiro Ramanovski, Sr., 443 So. 2d 302 (Fla. 3d DCA 1983)
- State v. Reeves, 444 So. 2d 20 (Fla. 2d DCA 1983)