STATE OF FLORIDA, APPELLANT,
v.
ANTON OTTROCK, APPELLEE
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The State of Florida appealed the dismissal of grand theft charges against Ottrock for lack of prosecution. The Fourth District Court of Appeal reversed, holding that dismissal of criminal charges is a last resort and that viable alternatives existed, such as denying the continuance motion or issuing a show cause order.
The court reversed the dismissal, holding that dismissal of criminal charges is only an action of last resort where no viable alternative exists. The trial court should have denied the continuance motion, issued a show cause order to compel the victim's appearance, or allowed the state to proceed with available evidence or enter a nolle prosequi.
[1] Dismissal of criminal charges is an action of last resort, only appropriate when no viable alternative exists.
[2] A trial court has alternatives to dismissal, such as denying a continuance or issuing a show cause order, when a witness fails to appear.
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Join FLexlaw to unlock all legal intelligence“dismissal of criminal charges is only an action of last resort where no viable alternative exists”
Establishes the controlling legal standard for when dismissal for lack of prosecution is appropriate
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Join FLexlaw to unlock all legal intelligenceOttrock was charged with grand theft in April 1989. Trial was set multiple times with defense requesting continuances primarily because the alleged vi…
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PER CURIAM.
The state appeals from an order dismissing a charge of grand theft against appel-lee for lack of prosecution. We reverse.
Appellee was charged in April 1989-with grand theft. Trial was set several times, and each time the defense moved for continuance because the deposition of the alleged victim had not taken place, for the most part because the defense could not serve a subpoena on him at the address provided by the state. However, there is no suggestion in the record that the state violated any discovery orders. Finally, trial was set for February 20, 1990. The defense moved to dismiss at that time because the victim was not present at trial. The state replied that it had subpoenaed the victim for trial, but he had failed to appear. The state objected to the defense motion to dismiss and requested its first continuance. The trial court elected to dismiss the charges.
While we sympathize with the trial court’s frustration, we must reverse, holding in line with State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982), that dismissal of criminal charges is only an action of last resort where no viable alternative exists. See also State v. Hamilton, 387 So. 2d 555 (Fla. 2d DCA 1980).
The trial court could have denied the motion for continuance, 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 while awaiting trial. While he has spent time and money to appear at the various docket calls, the continuances granted up until the dismissal were at the behest of his attorneys. Under the facts of this case, that is not the type of prejudice or unfairness which allows a dismissal of the information. See State v. Lundy, 531 So. 2d 1020 (Fla. 2d DCA 1988).
Reversed and remanded for further proceedings.
DELL, WARNER and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Mordechy Cohen, 662 So. 2d 430 (Fla. 3d DCA 1995)…f criminal charges in response to the State’s request for a continuance. We reverse. Criminal charges should be dismissed only as a last resort when no viable alternatives exist. State v. T.H., 592 So. 2d 759 (Fla. 5th DCA 1992); State v. Ottrock, 573 So. 2d 169 (Fla. 4th DCA 1991); State v. Wilson, 498 So. 2d 1053 (Fla. 4th DCA 1986); State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982). While a trial court has broad discretion in considering a continuance motion, State v. Lundy, 531 So. 2d 1020 (Fla. 2d DCA…
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State v. T.H., 592 So. 2d 759 (Fla. 5th DCA 1992)…re a sheriff — in the sheriff’s school.” The trial court then stated “[t]hat case is dismissed also. All right call the next case.” Dismissal of criminal charges is only an action of last resort where no viable alternative exists. State v. Ottrock, 573 So. 2d 169 (Fla. 4th DCA 1991). The reason that dismissal of criminal charges should be utilized as a last resort is that the sanction of dismissal punishes the public, not the state or the witness who fails to appear, and results in a windfall to the appellee…
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State v. Briggs, 578 So. 2d 901 (Fla. 4th DCA 1991)…ecause of witness problems. The state did not indicate a refusal to proceed with the trial if so ordered. No prejudice to the defendant appears in the record. A dismissal under these circumstances is an abuse of discretion. E.g., State v. Ottrock, 573 So. 2d 169 (Fla. 4th DCA 1991); State v. Wilson, 498 So. 2d 1053 (Fla. 4th DCA 1986); State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982). The order of dismissal is reversed and the cause remanded for trial. HERSEY, C.J., and GLICKSTEIN and STONE, JJ., concur…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. S.M.F., 546 So. 2d 20 (Fla. 3d DCA 1989)
- State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982)
- State v. Dane Montel Hamilton, 387 So. 2d 555 (Fla. 2d DCA 1980)
- State v. Lundy, 531 So. 2d 1020 (Fla. 2d DCA 1988)