STATE OF FLORIDA, APPELLANT,
v.
JERRY WHITE, APPELLEE
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The State of Florida appeals the dismissal of an aggravated battery charge against Jerry White for failure to prosecute. The Fourth District Court of Appeal affirms the dismissal, holding that the trial court properly denied the state's continuance motion and dismissed the case when the state could not locate its key witness and offered no reasonable assurance it could do so.
The trial court did not abuse its discretion in denying the state's continuance motion and dismissing the information. Because the state provided no reasonable assurance it could locate and serve the victim or proceed with the case if continued, dismissal was an appropriate sanction under the circumstances.
[1] Dismissal of a criminal information is a harsh penalty reserved for instances where no viable alternative exists to secure a witness's participation.
[2] A trial court may abuse its discretion by sanctioning the state for a witness's failure to appear when other means, such as a continuance, are available.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because of the resultant immunity from future prosecution of a particular charge, dismissal is a very harsh penalty to impose upon the State and is reserved for those instances where no viable alternative exists.”
Establishes the legal standard that dismissal is an extreme sanction only appropriate when no other remedies are available.
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Join FLexlaw to unlock all legal intelligenceThe state charged White with aggravated battery by information, with arraignment on March 15, 2000. During a two-week docket in June, the trial was se…
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PER CURIAM.
The state appeals the dismissal of a criminal information for failure' to prosecute. We affirm.
The state charged appellee by information with aggravated battery. Appellee was arraigned on March 15, 2000, and on April 24 a defense continuance was granted. The trial, set for June 6, was, during the course of a two week docket, continued on a day to day basis. On June 16 the prosecutor announced that they had not yet located the victim and asked for a continuance, which the court denied. The prosecutor said he could not go to trial without the victim. The victim was not under subpoena and the only contact the prosecutor had with the victim, who was homeless, was through his mother. The victim’s mother said she would try to find him, but they had not succeeded by the end of the two-week docket. The prosecutor was not ready to go to trial without the victim and by the end of the two week docket, the police officers were no longer under subpoena. The state offered no assurance that it could or would be able to produce the victim at a later date, and stated to the court:
So when it comes up again, we’ll treat it as number one, because the victim doesn’t want to go forward in this case. So we’ll just nolle pros it at an official time. Right now there’s no jury and it’s at the end of the two-week docket.
The prosecutor declined the court’s invitation to announce a nolle pros and the trial judge dismissed for lack of prosecution.
Generally, it is inappropriate to sanction the state for failure of a witness to appear by dismissing the case when other means to secure the witness’s participation, such as continuance, exist. State v. Pope, 675 So. 2d 165, 167 (Fla. 3d DCA 1996); State v. Cohen, 662 So. 2d 430 (Fla. 3d DCA 1995).
Because of the resultant immunity from future prosecution of a particular charge, dismissal is a very harsh penalty to impose upon the State and is reserved for those instances where no viable alternative exists.
State v. S.M.F., 546 So. 2d 20, 21 (Fla. 3d DCA 1989). Here, the state did not give the trial court any reasonable assurance that it could or would find and serve the victim, or that it would go forward with the case if continued. Under these circumstances, we hold that the trial court did not abuse its discretion when it denied the State’s motion for continuance and dismissed the information. See State v. McCarthy, 585 So. 2d 1167 (Fla. 4th DCA 1991). See also State v. Lawrence, 560 So. 2d 400 (Fla. 4th DCA 1990).
AFFIRMED.
DELL, GUNTHER and SHAHOOD, JJ., concur.
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State v. T.D., 837 So. 2d 551 (Fla. 4th DCA 2003)…charge). Generally, the courts have held that “it is inappropriate to sanction the state for failure of a witness to appear by dismissing the case when other means to secure the witness’s participation, such as continuance, exist.” State v. White, 792 So. 2d 606, 607 (Fla. 4th DCA 2001); State v. S.M.F., 546 So. 2d 20, 21 (Fla. 3d DCA 1989). Here, the record suggests that not only had the victim previously failed to appear for deposition, but that it was the victim’s failure to appear at trial the first tim…1 / 2
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State v. Amenhotep Alihakeem Kalfani, 968 So. 2d 599 (Fla. 2d DCA 2007)…e imposed only when less severe sanctions would not accomplish the desired result.” Ray, 525 So. 2d at 1034. The sanction is “reserved solely for those instances where no feasible alternative exists.” L.E., 754 So. 2d at 61; see also State v. White, 792 So. 2d 606, 607 (Fla. 4th DCA 2001) (“Because of the resultant immunity from future prosecution of a particular charge, dismissal is a very harsh penalty to impose upon the State and is reserved for those instances where no viable alternative exists.”). In L.E…
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State v. Gillis, 876 So. 2d 703 (Fla. 3d DCA 2004)…only be used sparingly and in extreme situations. See State v. Del Guadio, 445 So. 2d 605 (Fla. 3d DCA 1984). We determine the States actions in this case fall into the narrow category where this extreme sanction is appropriate. See State v. White, 792 So. 2d 606 (Fla. 4th DCA 2001)(dismissal appropriate sanction for states failure to secure victims participation), State v. Alfonso, 478 So. 2d 1119 (Fla. 4th DCA 1985)(dismissal appropriate sanction for repeated discovery violations). Here, the State failed…
Authorities Cited
- State v. S.M.F., 546 So. 2d 20 (Fla. 3d DCA 1989)
- State v. Mordechy Cohen, 662 So. 2d 430 (Fla. 3d DCA 1995)
- State v. Pope, 675 So. 2d 165 (Fla. 3d DCA 1996)
- State v. Doyle Lawrence, 560 So. 2d 400 (Fla. 4th DCA 1990)
- State v. McCARTHY, 585 So. 2d 1167 (Fla. 4th DCA 1991)