CITY OF MIAMI BEACH

v.

ADALBERTO COSME

Third District Court of Appeal

State of Florida

Opinion filed February 7, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1404 Lower Tribunal No. B22-14816

________________

City of Miami Beach,

Appellant,

vs.

Adalberto Cosme,

Appellee.

An Appeal from the County Court for Miami-Dade County, Robin Faber, Judge. Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General; Rafael A. Paz, City Attorney, and Robert F. Rosenwald, Jr., Chief Deputy City Attorney, and Woody Clermont, Assistant City Attorney, for appellant. Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellee. Before SCALES, LINDSEY, and MILLER, JJ. LINDSEY, J. The City of Miami Beach appeals the trial court’s sua sponte dismissal of the charges against Adalberto Cosme. For the reasons set forth below, we reverse.

On the afternoon of July 27, 2022, two City of Miami Beach police officers observed Appellee Adalberto Cosme (Defendant below) with an open alcoholic beverage in plain view of the public. Cosme smelled heavily of alcohol and slurred his speech. The officers arrested Cosme and transported him to jail.

Cosme was charged by arrest affidavit with consumption and possession of an open container of alcohol in a public place in violation of section 70-87(a)(1), Miami Beach Code of Ordinances. The Municipal Prosecutor was present at the first appearance on the morning of July 28, 2022.1 Cosme did not appear. The Department of Corrections advised the court that Cosme was in medical isolation. At the Assistant Public Defender’s request, the case was reset for the following day. But instead, the case was recalled during the afternoon first appearance calendar on the same day (July 28). The City was not noticed to appear in the afternoon. Hence, the Municipal Prosecutor was not

Case No. 3D22-1404

MILLER, J., dissenting.

I respectfully dissent. I agree with the majority in so far as it concludes that the right by the State to maintain a prosecution is integral to our justice system and the trial court possesses no authority to interfere with that right, absent legal justification. But I view the preservation issue slightly differently. It seems to me that this case is on all fours with the decision of our sister court in State v. C.W., 166 So. 3d 950 (Fla. 4th DCA 2015), and that by requesting a written order of dismissal, without voicing any objection whatsoever to the process employed by the trial court, the municipal prosecutor invited the asserted error or, at a minimum, failed to preserve the claim for appellate review. See C.W., 166 So. 3d at 950 (simultaneously confirming that “in sua sponte dismissing the case, the trial court improperly ruled on an issue that was not before it and interfered with the State’s discretion to bring charges against [the defendant],” yet affirming dismissal “because the State ha[d] not preserved these arguments for appeal”). Relying upon settled appellate principles, courts around this state have routinely refused to impute reversible error in analogous circumstances. See e.g., Thomas v. State, 730 So. 2d 667, 668 (Fla. 1998) (“Where counsel communicates to the trial judge his acceptance of the procedure employed, the issue will be considered waived.”); Ashley v. State, 642 So. 2d 837, 838 (Fla. 3d DCA 1994) (“[T]he [appellant] can[not] take advantage on appeal of the situation he created at trial.”); Krasnick v. State, 691 So. 2d 523, 524 (Fla. 4th DCA 1997) (concluding appellate review of issue raised for first time on appeal has been waived); Bryan v. Bryan, 930 So. 2d 693, 697 (Fla. 3d DCA 2006) (“[U]nder the invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.”); Weber v. State, 602 So. 2d 1316, 1319 (Fla. 5th DCA 1992) (asserting appellant may not “sandbag [a] trial judge by requesting and approving [something] they know . . . will result in an automatic reversal, if given”); Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321, 324 (Fla. 1st DCA 2011) (finding appellants failed to preserve argument for appeal where “trial court's error appeared for the first time on the face of the final summary judgment” and appellants did not attempt to correct error with trial court); Anderson v. State, 93 So. 3d 1201, 1206 (Fla. 1st DCA 2012) (noting “[a]ppellant cannot . . . ‘cry foul’ and benefit from [the] invited error” after waiving issues on appeal with trial court); Chiu v. Wells Fargo Bank, N.A., 242 So. 3d 461, 463 (Fla. 3d DCA 2018) (“Generally, in order to raise an issue on appeal, it must be presented to the trial court, and the ‘specific legal argument or ground to be argued on appeal must be part of that presentation.’”). Accordingly, and because the factual issues surrounding the purported due process violation are not fully established by the record before us, I would affirm the order under review.