STATE OF FLORIDA, APPELLANT,
v.
WILLIE L. RYAN, APPELLEE
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Florida appeals the trial court's dismissal of a cocaine delivery charge against Willie L. Ryan based on the state's failure to file a timely written traverse to the defendant's motion to dismiss. The court reverses, holding that dismissal is an extreme sanction that should be used only when a lesser sanction like a continuance would not suffice, especially where the defendant suffered no demonstrated prejudice.
The trial court's dismissal was an impermissible excessive sanction. Dismissal of charges is an extreme sanction that should be used only when a lesser sanction would not accomplish the desired result. Since the defendant demonstrated no prejudice and offered to accommodate the state's request for an oral traverse, a continuance would have been an appropriate alternative remedy.
[1] Dismissal of charges is an extreme sanction that should be utilized with caution and only when a lesser sanction would not accomplish the desired result.
[2] A trial court abuses its discretion by dismissing charges as a sanction for a procedural violation when the violation was not willful and the defendant demonstrated no pr…
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Join FLexlaw to unlock all legal intelligence“the dismissal of charges against a defendant is an extreme sanction and one that should be utilized with caution and only when a lesser sanction would not accomplish the desired result”
Establishes the governing legal standard for when dismissal may be imposed as a sanction
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Join FLexlaw to unlock all legal intelligenceRyan was charged with delivery of cocaine on August 14, 1986. He filed a motion to dismiss on September 24, 1986. At the October 1 hearing, the prosec…
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PER CURIAM.
On August 14, 1986, appellee, Willie L. Ryan, was charged by information with delivery of cocaine. On September 24, 1986, appellee filed a sworn motion to dismiss. The motion was heard one week later on October 1, 1986. At the hearing the prosecutor indicated that he never received a copy of the motion and did not learn of the motion until 4:00 P.M. the prior day. The certificate of service on the motion indicated a copy of the motion was hand delivered to the prosecutor on September 24, 1986, although the public defender stated that she mailed it on that date.
The prosecutor asked the trial court for time to traverse the motion and stated that he was willing to orally traverse, but believed case law required that the defendant be present. Appellee’s attorney then offered to waive the defendant’s presence, however, the trial court immediately granted the motion to dismiss. We reverse.
While the exact time frame involved is unclear, the prosecutor, at best, had five working days to file a traverse. The public defender indicated that the motion to dismiss was mailed, not hand delivered, which would have given appellant even less time to prepare a traverse. In State v. Burnison, 438 So. 2d 538 (Fla. 2d DCA 1983), a hearing was held on the defendant’s motion to dismiss approximately two months after the defendant had filed his motion. Immediately before the commencement of the hearing the assistant state attorney hand delivered a traverse to defense counsel. The trial court found that the traverse had not been filed a reasonable time before the hearing as required by Florida Rule of Criminal Procedure 3.190(d), and granted the motion to dismiss. In reversing the district court stated:
We have previously addressed the granting of a motion to dismiss as a sanction. In State v. King, 372 So. 2d 1126 (Fla. 2d DCA 1979), cert. denied, 385 So. 2d 758 (Fla.1980), we reversed the trial court’s dismissal of prosecution as an abuse of discretion after the state failed to comply with an oral order. We found that the state’s action had not been willful and the defendant demonstrated no prejudice to his cause. In evaluating the sanction we stated:
While a trial court has the authority to dismiss a cause as a sanction for failure to comply with a court order or for violation of a discovery rule, Fla.R. Crim.P. 3.220(j), State v. Oliver, 322 So. 2d 638 (Fla. 3d DCA 1975), the dismissal of charges against a defendant is an extreme sanction and one that should be utilized with caution and only when a lesser sanction would not accomplish the desired result. State v. Smith, 342 So. 2d 1094 (Fla. 2d DCA 1977).
Accord, State v. Perez, 383 So. 2d 923 (Fla. 2d DCA 1980). In State v. Spillane, 419 So. 2d 753 (Fla. 2d DCA 1982), where an order dismissing an information was granted following alleged misconduct by certain deputies, we reversed the dismissal as too drastic a sanction, absent demonstrable prejudice to the defendant. In State v. Banks, 418 So. 2d 1059 (Fla. 2d DCA), cert. denied, 424 So. 2d 760 (Fla.1982), after reversing a dismissal for a discovery violation, we pointed out that the trial court should have been aware of the availability of a continuance as a viable alternative to remedy any disadvantage to defendant’s preparation.
Id. at 539-40.
See also State v. Higgins, 437 So. 2d 180 (Fla. 4th DCA 1983).
Given the facts of the present case, we hold the trial court’s action was too severe. At the hearing appellee did not indicate he would suffer any prejudice if a continuance were granted. In fact, he offered to accommodate appellant’s request for an oral traverse. Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
ANSTEAD, DELL and GUNTHER, JJ., concur.
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State v. Rogel Vixamar, 687 So. 2d 300 (Fla. 4th DCA 1997)…dismissal of a criminal ease is Florida Rule of Criminal Procedure 3.220(n)(1), which involves a party that “has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule.” See State v. Ryan, 513 So. 2d 753, 754 (Fla. 4th DCA 1987); State v. Burnison, 438 So. 2d 538 (Fla. 2d DCA 1983); State v. Oliver, 322 So. 2d 638 (Fla. 3d DCA 1975). Dismissal of charges against a defendant is an extreme sanction that should be utilized with caution, only when a les…
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State v. Sawyer, 526 So. 2d 191 (Fla. 3d DCA 1988)…. State, 470 So. 2d 1387 (Fla.1985). Even if the traverse was not filed at a “reasonable time before the hearing on the motion to dismiss,” Fla.R.Crim.P. 3.190(d), dismissal is too harsh a sanction under the factual circumstances. See State v. Ryan, 513 So. 2d 753 (Fla. 4th DCA 1987); State v. Burnison, 438 So. 2d 538 (Fla.2d DCA 1983). We need not decide whether the sworn motion to dismiss is sufficient under State v. Rodriquez, 523 So. 2d 1141 (Fla.1988) (ju-rat in which defendant swears to his statements…
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State v. Thomas, 519 So. 2d 1091 (Fla. 2d DCA 1988)…sanction which should only be utilized in the most extraordinary circumstances, particularly here, where the dismissal was with prejudice. See State v. King, 372 So. 2d 1126 (Fla. 2d DCA 1979), cert. denied, 385 So. 2d 758 (Fla.1980); State v. Ryan, 513 So. 2d 753 (Fla. 4th DCA 1987). Under circumstances similar to those present here, where the state has requested a second continuance for the reason that a witness is unavailable, the court in State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982), disapproved th…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Smith, 342 So. 2d 1094 (Fla. 2d DCA 1977)
- State v. Perez, 383 So. 2d 923 (Fla. 2d DCA 1980)
- PAN Am. Bank OF Orlando v. Anne J. Yanow, 372 So. 2d 1126 (Fla. 4th DCA 1979)
- State v. O. C. "Sonny" King, 372 So. 2d 1126 (Fla. 2d DCA 1979)
- State v. Roy Ozzie Banks, 418 So. 2d 1059 (Fla. 2d DCA 1982)
- State v. Burnison, 438 So. 2d 538 (Fla. 2d DCA 1983)
- State v. Higgins, 437 So. 2d 180 (Fla. 4th DCA 1983)
- State v. Oliver, 322 So. 2d 638 (Fla. 3d DCA 1975)
- Allstate Ins. Co. v. Arlyne Flickinger, 322 So. 2d 638 (Fla. 3d DCA 1975)
- State v. Spillane, 419 So. 2d 753 (Fla. 2d DCA 1982)