STATE OF FLORIDA, APPELLANT,
v.
T.H., A CHILD, APPELLEE
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The trial court abused its discretion by dismissing criminal charges when viable alternatives existed and no prejudice to the defendant was shown.
[1] Dismissal of criminal charges is an action of last resort, as it punishes the public and results in a windfall to the defendant.
[2] A trial court abuses its discretion by dismissing criminal charges sua sponte when viable alternatives exist, such as a nolle prosequi and refiling.
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Join FLexlaw to unlock all legal intelligenceThe state sought a continuance for an absent eyewitness, but the trial court dismissed the trespassing charge. The state appeals this dismissal.…
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[*760] DIAMANTIS, Judge.
The state appeals the trial court’s dismissal of the charge of trespassing on public school grounds1 filed against appellee following the lower court’s denial of the state’s only motion for a continuance made on the day that this matter was set for an adjudicatory hearing. We reverse.
The state sought its first continuance because an eyewitness was absent. The eyewitness, who, according to the trial court, had been subpoenaed, was in school and could not be present. The trial court stated that “[wjhen we have students in school, they have to come to — here if they’re public school students, but not if they’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. State v. Del Gaudio, 445 So. 2d 605, 608 (Fla. 3d DCA), rev. denied, 453 So. 2d 45 (Fla.1984).
The record in this case fails to show any prejudice to appellee, who neither opposed the continuance nor sought a dismissal. The trial court’s decision to dismiss the cause sua sponte foreclosed the state from exercising available alternatives, such as entering a nolle prosequi and refiling the charges or proceeding to trial without the witness. Further, the trial court failed to determine whether there would have been any prejudice to appellee in granting the state’s motion for a continuance and charging the same to the state.
Dismissal here constituted an abuse of discretion because the trial court had several viable alternatives available to it without resorting to the extreme sanction of dismissal. State v. Macon, 584 So. 2d 218 (Fla. 4th DCA 1991).
REVERSED and REMANDED.
DAUKSCH and W. SHARP, JJ., concur. . § 228.091, Fla.Stat. (1989).
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Citator
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State v. Brosky, 79 So. 3d 134 (Fla. 3d DCA 2012)…es 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., State v. L.E., 754 So. 2d 60, 61 (Fla. 3d DCA 2000); State v. T.H., 592 So. 2d 759, 760 (Fla. 5th DCA 1992); State v. Lowe, 398 So. 2d 962, 963 (Fla. 4th DCA 1981). The prosecutor has the sole discretion to charge and prosecute criminal acts. McArthur v. State, 597 So. 2d 406, 408 (Fla. 1st DCA 1992). This discretion is not affe…
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State v. J.G., 740 So. 2d 84 (Fla. 3d DCA 1999)…e defendant for lack of prosecution. The State appeals. Dismissal of criminal charges is an extreme sanction reserved only for those instances where no viable alternative exists. See State v. Cohen, 662 So. 2d 430 (Fla. 3d DCA 1995); State v. T.H., 592 So. 2d 759 (Fla. 5th DCA 1992); State v. S.M.F., 546 So. 2d 20 (Fla. 3d DCA 1989). Viable alternatives to dismissal where the State cannot locate a witness often include: granting a continuance; denying a continuance and permitting the State an opportunity to…
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State v. Mordechy Cohen, 662 So. 2d 430 (Fla. 3d DCA 1995)…State appeals the trial court’s sua sponte dismissal of 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 continuanc…
Previewing 3 of 5 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. Anton Ottrock, 573 So. 2d 169 (Fla. 4th DCA 1991)
- State v. MacOn, 584 So. 2d 218 (Fla. 4th DCA 1991)