THE STATE OF FLORIDA, APPELLANT,
v.
J.G., A JUVENILE, APPELLEE
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The State appealed the trial court's dismissal of battery charges against a juvenile defendant for lack of prosecution after the 90-day speedy trial period expired. The appellate court reversed, holding that the trial court abused its discretion by refusing to consider a continuance request without analyzing the required factors for witness unavailability, when a continuance was the only viable alternative to dismissal.
The trial court abused its discretion by refusing to consider the State's continuance request. Because the 90-day speedy trial period had expired, the trial court's options were limited, and the only viable alternative to dismissal was granting a continuance. The court must analyze the required factors for witness unavailability before denying a continuance request.
[1] Dismissal of criminal charges is an extreme sanction reserved for instances where no viable alternative exists.
[2] Viable alternatives to dismissal when the State cannot locate a witness include granting a continuance, permitting the State to enter a nolle prosequi and refile, or proc…
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Join FLexlaw to unlock all legal intelligence“Dismissal of criminal charges is an extreme sanction reserved only for those instances where no viable alternative exists.”
Establishes the legal standard that dismissal is a last resort remedy, not a discretionary punishment
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Join FLexlaw to unlock all legal intelligenceThe State filed a delinquency petition on April 17, 1998, alleging the defendant committed battery on a three-year-old child. The trial was originally…
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PER CURIAM.
The State appeals the trial court’s dismissal of battery charges against J.G. (“defendant”). We reverse.
The State filed a petition of delinquency against the defendant on April 17, 1998, alleging that he committed a battery upon a three-year-old child. Trial was set for July 1, 1998. On that date, the State initially indicated that it was ready to proceed, but then asked for a continuance because the prosecutor was unable to locate some of the State’s witnesses. The trial court granted the State’s request and rescheduled the trial for July 22, 1998, noting that no more continuances would be granted.
On July 17, 1999, the defendant moved for a discharge on the ground that the 90-day speedy trial period had elapsed. The motion was deemed well taken by the State and the court, and the case remained set for July 22nd. On that date, the State indicated that it still had not located its witnesses and once again requested a continuance within the ten day window period provided by the speedy trial provisions of Florida Rule of Juvenile Procedure 8.090(m)(3). Noting its prior warning, however, the trial court denied the State’s motion for a second 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 continuance and permitting the State an opportunity to enter a nolle prosequi and re-file the petition at a later date, and; denying a continuance and permitting the State an opportunity to proceed without its witnesses. See State v. Cohen, 662 So. 2d at 430; State v. S.M.F., 546 So. 2d at 21.
Here, however, the trial court’s options were limited by the fact that the 90-day speedy trial period had expired. The expiration of this period rendered the entry of a nolle prosequi for purposes of refiling the petition impossible. See P.S. v. State, 658 So. 2d 92 (Fla.1995); P.G. v. State, 711 So. 2d 188 (Fla. 5th DCA 1998).
The trial court’s options were further limited by the fact that the State indicated that it could not proceed without its missing witnesses. The only viable alternative to dismissal, therefore, was to grant a continuance.
In order to obtain a continuance due to the unavailability of a witness, the movant must show:
(1) prior due diligence to obtain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice.
Geralds v. State, 674 So. 2d 96, 99 (Fla.), cert. denied, 519 U.S. 891, 117 S.Ct. 230, 136 L.Ed.2d 161 (1996). It follows that the trial court must consider these factors in determining whether to grant a continuance.
The trial court did not do so here. Instead, it turned a deaf ear to the State’s arguments and simply noted that it had previously warned that it would not grant any further continuances. The trial court abused its discretion in this regard. See Geralds v. State, 674 So. 2d at 99.
“Where the State requests a continuance due to the unavailability of a witness and the delay would not prejudice the defendant, a dismissal constitutes an extreme, sanction if less severe alternatives exist.” State v. R.P., 620 So. 2d 795 (Fla. 3d DCA 1993). A ten day continuance certainly would have been a less severe alternative to dismissal. The trial court should have, at the very least, considered the State’s request.
Reversed.
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State v. Brosky, 79 So. 3d 134 (Fla. 3d DCA 2012)…minal charges is an extreme sanction reserved solely for 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 publ…
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Glenna Fisher v. Perez, 947 So. 2d 648 (Fla. 3d DCA 2007)…ain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice.” State v. J.G., 740 So. 2d 84, 85 (Fla. 3d DCA 1999) (citing Geralds v. State, 674 So. 2d 96, 99 (Fla.1996)). In support of the trial court’s denial of the motion for continuance, Perez contends that these technical requirements were not met and that the motion for continuance…
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State v. L.E., 754 So. 2d 60 (Fla. 3d DCA 2000)…was an abuse of discretion. We entirely agree and reverse. This court has repeatedly stated that the dismissal of criminal charges is an extreme sanction reserved solely for those instances where no feasible alternative exists. See State v. J.G., 740 So. 2d 84, 85 (Fla. 3d DCA 1999); State v. Cohen, 662 So. 2d 480 (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 utilized as a last resort is that this sanction punishes the pu…
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
- Geralds v. State, 674 So. 2d 96 (Fla. 1996)
- State v. S.M.F., 546 So. 2d 20 (Fla. 3d DCA 1989)
- P.S. v. State, 658 So. 2d 92 (Fla. 1995)
- State v. Mordechy Cohen, 662 So. 2d 430 (Fla. 3d DCA 1995)
- State v. T.H., 592 So. 2d 759 (Fla. 5th DCA 1992)
- Reese v. Johnson, 519 U.S. 891 (U.S. 1996)
- Duarte v. United States Bureau of Prisons, 519 U.S. 891 (U.S. 1996)
- Romano v. Concetta Russo, 620 So. 2d 795 (Fla. 3d DCA 1993)
- State v. R.P., 620 So. 2d 795 (Fla. 3d DCA 1993)
- P.G. v. State, 711 So. 2d 188 (Fla. 5th DCA 1998)