THE STATE OF FLORIDA, APPELLANT,
v.
OSCAR ALVAREZ ET AL., APPELLEES; THE STATE OF FLORIDA, APPELLANT, V. ANTHONY JOSEPH DELANO ET AL., APPELLEES; THE STATE OF FLORIDA, APPELLANT, V. DAVE MARCUS, APPELLEE; THE STATE OF FLORIDA, APPELLANT, V. DAVE MARCUS AND RICHARD RIGGINS, APPELLEES
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A trial judge has the inherent power to declare a prosecution abandoned if the record supports such a finding, even if the judge's stated reason for dismissal is erroneous.
[1] A trial judge in a criminal prosecution possesses the inherent power to declare a prosecution abandoned if the record supports such a finding.
[2] A trial court's order will be affirmed if it is sustainable on any theory or principle of law, even if the stated reason for the decision is incorrect.
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Join FLexlaw to unlock all legal intelligenceThe State appealed orders dismissing informations filed after a grand jury investigation, where the presiding judge declared the prosecutions abandone…
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The State is the appellant in each of these appeals. In each case it is appealing an order of the trial court declaring that the prosecution of the cause had been abandoned by the State and thereupon dismissing the information filed. All of these informations were filed as the result of the grand jury testimony of a former police officer named Charles Celona. Presumably because of the public corruption alleged, the Governor of the State of Florida assigned officers from circuits outside of the eleventh judicial circuit to prosecute the charges growing out of the Celona investigation. These informations were dismissed by the presiding judge on April 2, 1971.
The threshold question is whether a trial judge in a criminal prosecution before him has the power to declare a prosecution abandoned when the prosecuting officer urges that the prosecution should be continued. The State does not make this question a point on appeal but urges rather that the order of the trial judge was based upon a mistaken application of the statute pertaining to the assignment of state’s attorneys.1 In the alternative it is argued that the trial judge’s order is, erroneous because the record does not support a finding that the prosecution of the cases was abandoned. We think that a determination of the trial judge’s right to take the action that he did is necessary to a consideration of the case.
The appellees have cited State v. O’Neal, Fla.App.1965, 174 So.2d 564, to support the conclusion that a trial judge in a criminal prosecution has an inherent power to declare that the prosecution has failed to go forward with a cause and therefore can dismiss the information. In that case, the appellate court affirmed an order which stated that the State had abandoned or discontinued the prosecution of certain informations, but the affirmance was upon the stated ground that the appellate court was not furnished with a record of the proceedings in the trial court. The court stated: “In the absence of all the record that was adduced below, we must accept the circuit judge’s statement.” We conclude that a trial judge in a criminal prosecution does have inherent power to make a finding that an abandonment of a criminal prosecution does exist. But this finding of fact, like all other findings of fact, must be supported by the record. See *26discussion at 21 Am.Jur.2d Criminal Law § 517. City of Wichita v. Catino, 175 Kan. 657, 265 P.2d 849 (1954), City of Wichita v. Houchens, 184 Kan. 297, 335 P.2d 1117 (1959).
The State argues with considerable logic that the trial judge erred in his conclusion that the authority of the specially appointed state’s attorneys from other circuits had expired. It has often been pointed out, however, that even if a court states an incorrect reason in its decision, a reversal is not required if the order challenged is sustainable upon other grounds. In Cohen v. Mohawk Inc., Fla.1962, 137 So.2d 222, the Supreme Court went further to point out the duty of the district courts in such cases.
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“It should be kept in mind that the judgment of the trial court reached the district court clothed with a presumption in favor of its validity. 1 Fla.Law and Practice, Appeals § 152, 2 Fla.Jur., Appeals § 314, and authorities cited therein. Accordingly, if upon the pleadings and evidence before the trial court, there was any theory or principle of law which would support the trial court’s judgment in favor of the plaintiffs, the district court was obliged to affirm that judgment.”
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Emphasis as noted 137 So.2d 225.
In the present instance the trial judge reached the conclusion that the prosecution of these criminal cases had been effectively abandoned by the State of Florida. As gathered from the record before us it is clear that the court and the defendants were faced with an impossible situation in which the prosecution could not effectively proceed. The elected state’s attorney for the eleventh judicial circuit failed to appear to prosecute the defendants. Several of the assigned assistant state’s attorneys declined or showed no interest in the prosecution. The one assigned assistant state’s attorney who showed an interest was tardy and sporadic in his appearances to prosecute the causes. It is our view that the trial judge’s conclusion that the history of these prosecutions begun in 1969 and 1970 was effectively abandoned on April 2, 1971 is correct.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Evans, 418 So. 2d 459 (Fla. 4th DCA 1982)…denying the motion for continuance. The state would have had the option to nol-pros or it could have attempted to make its case without the unavailable witness. In any event, dismissal was unwarranted. The defendant’s reliance on State v. Alvarez, 258 So. 2d 24 (Fla. 3d DCA 1972), is misplaced. In Alvarez, the trial court’s dismissal came after more than a year of prosecutorial foot dragging. The instant case is not analogous. REVERSED and REMANDED. ANSTEAD, HURLEY and DELL, JJ., concur.…
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State v. Haynes, 463 So. 2d 1248 (Fla. 5th DCA 1985)…the instances in which the state is permitted to appeal an order. Subsection (1)(A) thereof lists dismissal of an information or any count thereof as one such instance. Several Florida cases are relevant to our considerations. In State v. Alvarez, 258 So. 2d 24 (Fla. 3d DCA 1972), the Third District held that a trial judge in a criminal prosecution has the inherent power to declare the prosecution abandoned. In Alvarez, the state attorneys were consistently tardy for, or absent from, court appearances and…
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State v. Anders, 388 So. 2d 308 (Fla. 3d DCA 1980)…gh the propriety of the first dismissal is not specifically be fore us in this proceeding, we observe both that the court was authorized to dismiss the case with prejudice on the ground that the prosecution had been abandoned, see. State v. Alvarez, 258 So. 2d 24 (Fla.3d DCA 1972), and that the state would be barred by the invited error rule from asserting otherwise. 3 Fla.Jur.2d Appellate Review § 294 (1978). It is hardly acceptable, therefore, to permit the state to accomplish indirectly in this appeal fro…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cohen v. Mohawk, Inc., 137 So. 2d 222 (Fla. 1962)
- State v. Knox O'Neal, 174 So. 2d 564 (Fla. 2d DCA 1965)