STATE OF FLORIDA, APPELLANT,
v.
JACQUILINE DAISE, APPELLEE; STATE OF FLORIDA, APPELLANT, V. ALFRED DAISE, APPELLEE
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Florida's dismissal of an information for aggravated child abuse was reversed because the trial judge improperly dismissed the case when the state's witness failed to appear for deposition; only the state may dispose of a case by nolle prosequi, not the trial court.
A trial court may not dismiss a criminal case merely because the state's witness fails to appear; only the state may dispose of a case by nolle prosequi.
[1] When a state's witness fails to appear, a trial court may employ various remedies including proceeding without the witness, excluding the witness after hearing, granting…
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Join FLexlaw to unlock all legal intelligenceThe state charged Jacquiline and Alfred Daise with aggravated child abuse. The trial judge ordered the state to produce the victim as a witness, but t…
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STONE, Judge.
The state appeals the dismissal of an information following the failure of a witness to appear for deposition. The trial judge had previously ordered the state to produce the witness, who was the victim of an aggravated child abuse. The mother of the victim also failed to appear at the depositions which were set for the day of the trial call. We reverse. State v. Wilson, 498 So. 2d 1053 (Fla. 4th DCA 1986); State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982); State v. Lowe, 398 So. 2d 962 (Fla. 4th DCA 1981); State v. Valdes, 443 So. 2d 302 (Fla. 3d DCA 1983).
There are numerous remedies available to the court, in an appropriate case, when a state’s witness fails to appear. The court may commence the trial without the witness; exclude the witness after a hearing following the criteria set forth in Richardson v. State, 246 So. 2d 771 (Fla.1971); grant a continuance to the defense; issue a rule to show cause why the witness should not be held in contempt; hold the witness in contempt; issue a writ of body attachment; or impose other sanctions. Only the state however, may dispose of the case by a nolle prosequi. Cf. Wilson; Evans; Lowe; Valdes; State v. Merritt, 394 So. 2d 531 (Fla. 3d DCA 1981); Knight v. State, 373 So. 2d 52 (Fla. 4th DCA 1979), cert. denied, 385 So. 2d 761 (Fla.1980); State v. Carda, 495 So. 2d 912 (Fla. 3d DCA 1986).
We therefore reverse and remand for further proceedings.
ANSTEAD and WALDEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Gonzalez, 695 So. 2d 1290 (Fla. 4th DCA 1997)…See State v. Brown, 416 So. 2d 1258, 1259 (Fla. 4th DCA 1982); Wilson v. Renfroe, 91 So. 2d 857, 859 (Fla.1956). On remand, the trial court may use those remedies available to it when a state witness fails to appear for deposition. State v. Daise, 508 So. 2d 560 (Fla. 4th DCA 1987). For example, the judge may commence indirect criminal contempt proceedings under Florida Rule of Criminal Procedure 3.840 and section 39.0145, Florida Statutes (1995), see Florida Rule of Criminal Procedure 3.220(h)(1); initiate…
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State v. Castor Segundo Fortesa-Ruiz, 559 So. 2d 1180 (Fla. 3d DCA 1990)…398 So. 2d 962 (Fla. 4th DCA 1981). There were several alternatives available to the court other than granting the motion to suppress. The court could have held the suppression hearing at a later date, or even during trial. See also State v. Daise, 508 So. 2d 560 (Fla. 4th DCA 1987). This is not to say that a trial judge cannot declare the prosecution of a case abandoned. However, such a finding of abandonment must be supported by the record. State v. Alvarez, 258 So. 2d 24 (Fla. 3d DCA 1972). In those case…
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State v. Bouma, 554 So. 2d 641 (Fla. 4th DCA 1989)…esponse would have been to ask the state if it was prepared to go to trial without the witness, or if it wished to enter a nolle prosequi to the charges and refile at a later time, or the trial court could have granted a continuance. State v. Daise, 508 So. 2d 560 (Fla. 4th DCA 1987); State v. Wilson, 498 So. 2d 1053 (Fla. 4th DCA 1986). The only inquiry made by the trial court was as to the state’s ability to produce the witness. Under such a scenario, the sanction of dismissal was too severe and not an appr…
Authorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- State v. Lowe, 398 So. 2d 962 (Fla. 4th DCA 1981)
- State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982)
- Knight v. State, 373 So. 2d 52 (Fla. 4th DCA 1979)
- 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. Wilson, 498 So. 2d 1053 (Fla. 4th DCA 1986)
- ALL Clean Bldg. Maint., Inc. v. Strachan, 495 So. 2d 912 (Fla. 3d DCA 1986)
- State v. Merritt, 394 So. 2d 531 (Fla. 3d DCA 1981)