THE STATE OF FLORIDA, APPELLANT,
v.
MORDECHY COHEN, ASHER DEVANO, AND SERGE PARTOUCHE, APPELLEES
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A trial court abuses its discretion by sua sponte dismissing criminal charges in response to the State's request for a continuance when viable alternatives exist.
The State requested a continuance in a criminal case. The trial court sua sponte dismissed the charges in response to this request.…
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PER CURIAM.
The 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 continuance motion, State v. Lundy, 531 So. 2d 1020 (Fla. 2d DCA 1988), the trial court abused its discretion in this case by responding with a dismissal. See State v. Macon, 584 So. 2d 218 (Fla. 4th DCA 1991); State v. Briggs, 578 So. 2d 901 (Fla. 4th DCA 1991).
As this Court has stated, the trial court had several alternatives available other than sua sponte dismissal of the case: (1) deny the continuance motion, but allow the State meaningful opportunity to consider entering a nolle prosequi to the charges; (2) deny the continuance motion, but allow the State to proceed to trial as scheduled without its witness; or (3) grant the continuance motion, as a month remained until the speedy trial time elapsed and the defendants were not in custody. State v. S.M.F., 546 So. 2d 20 (Fla. 3d DCA 1989). Although we appreciate the trial court’s frustration in managing its calendar, we must reverse the order of dismissal and remand.
Reversed and remanded.
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State v. Brosky, 79 So. 3d 134 (Fla. 3d DCA 2012)…or those instances where no feasible alternative exists.”); 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, a…
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State v. Rogel Vixamar, 687 So. 2d 300 (Fla. 4th DCA 1997)…ve. The lesser sanction of ordering the prosecutor to enter a nolle prosequi, or giving the state a reasonable time to enter one, would have accomplished the desired result — to enforce the precise promise made by the prosecutor. See State v. Cohen, 662 So. 2d 430 (Fla. 3d DCA 1995); State v. Briggs, 578 So. 2d 901 (Fla. 4th DCA 1991). The court’s dismissal went far beyond the disposition negotiated by the parties. The dismissal amounted to punishment for the prosecutor being tardy to court and for his cowork…
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State v. J.G., 740 So. 2d 84 (Fla. 3d DCA 1999)…d continuance and dismissed the charges against the 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 conti…
Previewing 3 of 8 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. Wilson, 498 So. 2d 1053 (Fla. 4th DCA 1986)
- State v. Anton Ottrock, 573 So. 2d 169 (Fla. 4th DCA 1991)
- State v. Lundy, 531 So. 2d 1020 (Fla. 2d DCA 1988)
- State v. T.H., 592 So. 2d 759 (Fla. 5th DCA 1992)
- State v. Briggs, 578 So. 2d 901 (Fla. 4th DCA 1991)
- State v. MacOn, 584 So. 2d 218 (Fla. 4th DCA 1991)
- Turner v. State, 578 So. 2d 901 (Fla. 4th DCA 1991)