THE STATE OF FLORIDA, APPELLANT,
v.
S.M.F., A JUVENILE, APPELLEE
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The State of Florida appeals the dismissal of drug possession charges against a juvenile, S.M.F. The trial court dismissed the charges for lack of prosecution when the State was unable to produce its witnesses at the third trial setting. The appellate court reversed, holding that dismissal is too harsh a penalty and that less severe alternatives existed.
Dismissal is too harsh a penalty for prosecutorial delays and should be reserved for instances where no viable alternative exists. The trial court had less severe options available, including allowing the State to enter a nolle prosequi with the ability to re-file later, or proceeding to trial without the absent witnesses.
[1] A trial court abuses its discretion by dismissing a criminal case for lack of prosecution when less drastic alternatives, such as denying a continuance, are available.
[2] Dismissal of criminal charges is a severe sanction that should only be employed when no viable alternative exists.
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Join FLexlaw to unlock all legal intelligence“Because of the resultant immunity from future prosecution of a particular charge, dismissal is a very harsh penalty to impose upon the State and is reserved for those instances where no viable alternative exists.”
Establishes the legal standard that dismissal is an extreme sanction only appropriate when no alternatives remain available.
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Join FLexlaw to unlock all legal intelligenceS.M.F., a juvenile, was arrested for possession of cocaine and possession with intent to sell. At the first trial setting, the State obtained an unopp…
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GERSTEN, Judge.
This is an appeal from an order of dismissal. S.M.F., a juvenile, was arrested for possession of cocaine and possession with intent to sell. When the case first came to trial, the trial court granted the State’s unopposed motion for continuance. At the next trial setting, the case was called and the defense announced that it was ready for trial. The State advised the court that it was awaiting the arrival of the arresting officer, and the court temporarily passed over the case.
When the court recalled the case, the State announced that the arresting officer had arrived, but that the officer had failed to bring the evidence. The State informed the court that it had sent the officer back to retrieve the evidence and, not incidentally, that the lab technician was not present. The court gave the State approximately half an hour to produce both witnesses.
When the court called the case for the third time, the State requested a continuance because the arresting officer had not arrived and the lab technician was out ill. The State also, anticipating the court’s sua sponte dismissal of the charges, objected to their dismissal. At this juncture, the State obviously had no intention of abandoning its case. The court denied the State’s last-ditch request for a continuance and sua sponte dismissed the charges for lack of prosecution. We reverse.
Because of the resultant immunity from future prosecution of a particular charge, dismissal is a very harsh penalty to impose upon the State and is reserved for those instances where no viable alternative exists. State v. Del Gaudio, 445 So. 2d 605 (Pla. 3d DCA), review denied, 453 So. 2d 45 (Fla.1984); State v. Lowe, 398 So. 2d 962 (Fla. 4th DCA 1981). Procedurally, what could the court have done?
At this point, the trial court had several viable alternatives. In this case, the trial court chose to dismiss the charges for lack of prosecution. Unfortunately, under these circumstances, dismissal was not an appropriate option.
We find less severe alternatives remained open to the trial judge. For example, after 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 and fail to present a prima facie case, the charges could then be dismissed for insufficient evidence. Similarly, if the State were to fail to timely re-file the charges after announcing a nolle prosequi, the defendant could be discharged under Florida Rule of Juvenile Procedure 8.180.
We are well aware of the frustrations our hard working trial courts face in the day-to-day management of their calendars. We must, however, reverse the order of dismissal and remand.
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Cited By (19 total)
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State v. Brosky, 79 So. 3d 134 (Fla. 3d DCA 2012)…sts.”); State v. Bryant, 549 So. 2d 1155, 1155 (Fla. 3d DCA 1989); State v. Brown, 416 So. 2d 1258 (Fla. 4th DCA 1982); see also State v. J.G., 740 So. 2d 84, 85 (Fla. 3d DCA 1999); State v. Cohen, 662 So. 2d 430 (Fla. 3d DCA 1995); State v. S.M.F., 546 So. 2d 20, 21 (Fla. 3d DCA 1989). The reason that dismissal of criminal charges should be used as a last resort is that this sanction punishes the public, not the State or the witness who fails to appear, and results in a windfall to the appellee. See, e.g.…
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State v. Pautier, 548 So. 2d 709 (Fla. 3d DCA 1989)…h a sanction should only be had when no viable alternative exists.’ ’’ State v. Del Gaudio, 445 So. 2d 605, 608 (Fla. 3d DCA) (quoting State v. Lowe, 398 So. 2d 962, 963 (Fla. 4th DCA 1981)), review denied, 453 So. 2d 45 (Fla.1984); State v. S.M.F., 546 So. 2d 20 (Fla. 3d DCA 1989). Clearly the trial court had viable alternatives to this most severe and harshest of sanctions. The trial court could have: (1) ordered instanter a writ of bodily attachment of the confidential informant; (2) charged a continuanc…
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State v. Anton Ottrock, 573 So. 2d 169 (Fla. 4th DCA 1991)…or issued a show cause order to require the victim’s appearance. The state then could have either gone to trial with what it had or entered a nolle prosequi to the charges, thus retaining the right to refile at some later time. See State v. S.M.F., 546 So. 2d 20 (Fla. 3d DCA 1989). The appellee has not shown prejudice to himself in the preparation of his defense. Further, the appellee was not incarcerated [*170] while awaiting trial. While he has spent time and money to appear at the various docket calls,…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. del Gaudio, 445 So. 2d 605 (Fla. 3d DCA 1984)
- State v. Lowe, 398 So. 2d 962 (Fla. 4th DCA 1981)
- State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982)
- State v. Wilson, 498 So. 2d 1053 (Fla. 4th DCA 1986)