STATE

v.

GINO KERLING CADET

Before THORPE, O’KANE, and KOMANSKI, J.J.

PER CURIAM.

FINAL ORDER REVERSING TRIAL COURT

The State (herein “Appellant”) appeals the court’s dismissals of 2006-MM-571, State v. Gino Kerling Cadet and 2006-MM-7608, State v. Gregory Antwone Alexander. We reverse. On May 4, 2006, Orange County Sheriff’s Deputy Rodriguez arrested Gino Cadet (“Cadet”) for Petit Theft after an Assistant Manager at Walgreens saw him ripping pages out of magazines. On July 12, 2006, Orange County Sheriff’s Deputy James arrested Gregory Alexander (“Alexander”) for Trespass After Warning when he returned to Universal Studios even though security had issued him a trespass warning on July 8, 2006. The State charged Alexander with Trespass on Property Other Than Structure or Conveyance. 2 of 5 On the day of trial, the court dismissed the cases because the prosecutor was not in the court room when the cases were called and it therefore deemed that Appellant was not ready to proceed. These timely appeals follow. On February 19, 2007, the court consolidated 06-AP-33, State v. Gino Cadet into 06-AP-34, State v. Gregory Alexander. Both appeals stem from the same judge dismissing both cases on the same date for the same reason; both cases raise the same issue on appeal.

Appellant argues that the court abused its discretion when it sua sponte dismissed the cases against Appellees without first considering options other than dismissal. Appellant asserts that it had not abandoned its decision to prosecute either Appellee and the records do not show that the witnesses had not been subpoenaed and were therefore not available for trial. Neither Appellee filed an Answer Brief.

The trial court abused its discretion. As the Fifth District Court of Appeal has held, Dismissal is an extreme sanction that should be employed only when lesser sanctions would not achieve the desired result. It is restricted to ‘cases where no other sanction can remedy the prejudice to the defendant…to insure that the public’s interest in having persons accused of crimes brought to trial is not sacrificed in the name of punishing a prosecutor’s misconduct.’1 Dismissing charges without a showing of prejudice to the defendant awards the defendant a windfall and punishes the public rather than the prosecutor. State v. L.J.T., 921 So. 2d 746, 747 (Fla. 5th DCA 2006) (internal citations omitted). When a court summarily dismisses a case, it fails to consider other, less drastic alternatives available to it, including forbidding the witness(es) to testify, continuing the case until the witness(es) become available, ordering the witness(es)’ arrest for failure to comply with the subpoena, or issuing a rule to show cause or writ of bodily attachment. State v. Pope, 675 So. 2d 165, 167 (Fla. 3d DCA 1996). “…The trial court’s action in dismissing the case for lack of prosecution when the State [has] announced that it [is] ready for trial is clearly error because the court is, in

The court did not hear argument or even wait for the prosecutor to return before dismissing the cases. The prosecutor had stated she was confirming the status of her witnesses, but that she was ready to proceed. By dismissing the cases solely because the prosecutor was five minutes late in returning to the court room, the court foreclosed any opportunity Appellant had to proceed with either case. The dismissals provided a windfall for both Appellees, especially considering that neither one had moved to dismiss his case. No prejudice to either Appellee existed to explain how the court could consider dismissal to be the most appropriate option. Appellant never stated it was not ready to proceed, and the court failed to consider alternatives other than dismissal. In doing so, it abused its discretion. 5 of 5 Based on the foregoing, it is ORDERED AND ADJUDGED that the trial court’s orders are hereby REVERSED. The cases are REMANDED for further proceedings consistent with this opinion.

DONE AND ORDERED on this __22__ day of ____September_______ 2008.

___/S/______________________________

JANET C. THORPE

Circuit Court Judge

__/S/_______________________________ __/S/_______________________________ JULIE H. O’KANE

WALTER KOMANSKI Circuit Court Judge

Circuit Court Judge

Certificate of Service

I hereby certify that a copy of the foregoing Final Order Reversing Trial Court has been provided to Assistant State Attorney LaMya Henry, 415 North Orange Avenue, Orlando, Florida, 32801; Gino Kerling Cadet, 2803 West Arlington Street, Orlando, Florida, 32808; Gregory Antwone Alexander, 245 Barrow Street, Apopka, Florida, this __22__ day of __September_______ 2008.

___/S/_____________________________

Judicial Assistant