STATE OF FLORIDA, APPELLANT,
v.
LAZARO PADRON, APPELLEE
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The Second District Court of Appeal reversed a trial judge's order dismissing a criminal case after the judge restricted the state's discretion to nolle prosse (withdraw) the prosecution. The court held that the state attorney has sole discretion to file a nolle prosse, limited only by practical considerations, and the trial judge abused his discretion by conditioning that discretion.
The trial judge abused his discretion in restricting the state attorney's discretion to nolle prosse cases. The state has sole discretion to file a nolle prosse, limited only by practical considerations, and may refile an information after a nolle prosse unless restricted by such practical considerations.
[1] A trial court abuses its discretion by restricting the state attorney's discretion to enter a nolle prosequi.
[2] The decision to file a nolle prosequi is within the sole discretion of the state.
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Join FLexlaw to unlock all legal intelligence“The decision to file a nol prosse is within the sole discretion of the state.”
Establishes the fundamental principle that the state has sole discretion over nolle prosse decisions, which is the core holding of the case.
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Join FLexlaw to unlock all legal intelligenceLazaro Padron was charged by information. During a pretrial hearing, the state moved for a continuance due to witness unavailability. The trial judge …
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RYDER, Acting Chief Judge.
The facts of this case are straightforward and are not in dispute. Appellee was charged by information. During a hearing before the trial judge, there was a discussion concerning the unavailability of witnesses. The state moved for a continuance. After argument on the motion, the judge denied the motion and stated, “The state will have the opportunity to nol prosse if they wish.” The state responded that the case will be nol pressed and then refiled. Defense counsel moved for dismissal. After discerning that the state intended to nol prosse and then refile, the court entered an order of dismissal and discharged appellee from further prosecution. This appeal timely followed.
We hold that the trial judge abused his discretion in restricting the state attorney’s discretion to nol prosse cases. The matter at hand is similar to the case of State v. Kahmke, 468 So. 2d 284 (Fla. 1st DCA 1985), in which the first district held that the trial court abused its discretion in dismissing the cases before it. “The decision to file a nol prosse is within the sole discretion of the state.” Id. at 285. The state’s discretion in this area is limited by practical considerations. See State v. Stell, 407 So. 2d 642, 643 (Fla. 4th DCA 1981).
Appellee argues that a case from our district, State v. Schafer, 376 So. 2d 927 (Fla. 2d DCA 1979), is controlling. Schafer expressly refuses to address the issue now before us. “We do not here consider whether such a dismissal [with prejudice after a nol prosse] would be an abuse of the trial court’s discretion if attacked on direct appeal.” Id. at 929, n. 1. We also find instructive here the case of State v. Darnell, 335 So. 2d 638 (Fla. 4th DCA 1976), in which the fourth district struck down “an administrative order of the Eighteenth Judicial Circuit (not approved by the Supreme Court of Florida) which circumscribes the power of the state to refile an information subsequent to a nolle prose-qui.” Id. at 639.
We reverse the trial court, vacate its order and remand with instructions that the state be allowed to refile the information against appellee limited only by the practical considerations set out in Stell.
Reversed and remanded with instructions.
SCHOONOVER and SANDERLIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. M.J.B., 576 So. 2d 966 (Fla. 5th DCA 1991)…retion of the state. It may be filed at any time prior 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…
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State v. Britton Brown, 516 So. 2d 65 (Fla. 2d DCA 1987)…procedure in bad faith. The court granted the defendant’s motion and dismissed the state’s amended information with prejudice. The state appeals. We vacate the order of dismissal and reinstate the state’s amended information. See State v. Padron, 506 So. 2d 462 (Fla. 2d DCA 1987). DANAHY, C.J., and HALL, J., concur.…
Authorities Cited
- State v. Stell, 407 So. 2d 642 (Fla. 4th DCA 1981)
- State v. Kahmke, 468 So. 2d 284 (Fla. 1st DCA 1985)
- State v. Schafer, 376 So. 2d 927 (Fla. 2d DCA 1979)
- State v. Darnell, 335 So. 2d 638 (Fla. 4th DCA 1976)