STATE
v.
COGSWELL
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The State appealed the trial court's dismissal of charges against parents charged with contributing to delinquency/dependency of a minor under section 872.04 (first degree misdemeanor). The appellate court reversed, holding that prosecutors have broad discretion to choose which statute to charge under when conduct violates multiple criminal statutes, and the trial court erred in dismissing based on its view that the lesser charge under section 1003.27 was the only appropriate statute.
The court reversed, holding that prosecutors have well-settled discretion whether and what charge to file. Where an act violates more than one criminal statute, the prosecutor may prosecute under either statute, subject only to well-defined constitutional or legal constraints such as selective enforcement based on race, religion, or other arbitrary classification, bad faith, or a prohibitory statute. The prosecutor's choice of charge based on available penalties does not alone violate equal protection or due process.
[1] A prosecutor has the discretion to decide whether and what charges to file.
[2] When an act violates multiple criminal statutes, a prosecutor may choose to prosecute under any of the applicable statutes.
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Establishes the foundational principle of prosecutorial discretion in charging decisions and identifies the narrow limits on that discretion.
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Join FLexlaw to unlock all legal intelligenceThe State Attorney filed an information against two parents charging them with contributing to delinquency or dependency of a minor under section 872.…
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Appeal from the County Court of Orange County, Florida
Honorable W. Michael Miller, County Court Judge
Esther M. Whitehead, Assistant State Attorney for Appellant
Janice D. Kerr for Appellees
Before, Powell, Lauten, and Shea, J.J.
FINAL ORDER REVERSING LOWER COURT
On our own motion we consolidate these two cases for decision and all further proceeding since appellees were jointly charged in the same case below, were represented there and here by the same attorney, and their motions and answer briefs dealt with the same issue. We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.
The State Attorney filed an information against defendants/appellees, parents of a minor child, charging them with contributing to the delinquency or dependency of a minor, in violation of section 872.04, Florida Statutes, a first degree misdemeanor punishable by one year in the county jail. Appellees filed a written verified motion to dismiss asserting two grounds: (1) the undisputed material facts did not establish a prima facie case against appellees, and (2) by charging the greater crime rather than the lesser offense under section 1003.27, Florida Statutes, a second degree misdemeanor punishable by sixty days in the county jail, the appellees’ due process rights were violated. Appellant filed a written response to the motion
After conducting a hearing, the trial judge granted the motion. His decision was based on the second ground of the motion. He made no ruling on the first ground.1 At the conclusion of the hearing, he stated
I find in this case that this is not properly charged, that this is not what the Legislature intended, that these cases were meant to be handled under section 1003.27, that’s the only place the Legislature intended for them to be handled and its been overcharged, being charged as a first degree misdemeanor. So I am going to grant the Defense Motion to Dismiss. I’m going to dismiss the case with leave for the State to file this under 1003.27 if the State so desires.
And I will give the State ten days to make that decision.
The written signed order is found on a form entitled “Disposition”and states “Defense motion to dismiss is granted. State has 10 days to refile/amend under Florida Statute 1003.27.”
From this order the State appeals. We reverse.
The law is well settled that the prosecutor has discretion whether and what charge to file.
U.S. v. Batchelor, 442 U. S. 114 (1979). Where an act violates more than one criminal
It is patently obvious from the trial judge’s comments at the hearing that he based his ruling on the second ground of appellees’ motion. This was error. Consequently, this case is REVERSED, the information is reinstated, and this case is REMANDED for further proceedings consistent with this opinion.
DONE and ORDERED at Orlando, Florida this 23rd day of August, 2010.
________/S/__________________________
Rom W. Powell, Senior Judge
________/S/_____________________ ________/S/_________________________ Frederick J. Lauten, Circuit Court Judge Tim Shea, Circuit Court Judge
I hereby certify that a copy hereof has been furnished to the Office of the State Attorney, attorney for appellant, 415 N. Orange Avenue, Orlando Florida 32801, and to Janice D. Kerr, attorney for appellee, 20 South Rose Ave., Suite 7, Kissimmee, Florida 34741, by mail, this 23rd day of August, 2010.
________/S/__________________________
Judicial Assistant
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Citator
Authorities Cited
- United States v. Batchelder, 442 U.S. 114 (U.S. 1979)
- State v. Cogswell, 521 So. 2d 1081 (Fla. 1988)
- Gasset v. State, 490 So. 2d 97 (Fla. 3d DCA 1986)
- State v. Ngo Lanh Nguyen, 980 So. 2d 1189 (Fla. 5th DCA 2008)