THE STATE OF FLORIDA, APPELLANT,
v.
RICHARD ERVIN WELLS, APPELLEE
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The trial court erred in dismissing refiled informations for failure to obtain court permission, as no such requirement exists.
[1] A trial court errs in dismissing refiled criminal informations solely for the state's failure to obtain permission to refile, absent any statutory, rule-based, or decisio…
[2] A trial court's dismissal of a case for the state's unreadiness, without further inquiry or a motion to continue, may be erroneous.
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Join FLexlaw to unlock all legal intelligenceThe state refiled conspiracy and grand larceny charges after the original informations were dismissed when the state announced it was not ready for tr…
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These consolidated appeals by the state of Florida are from an order of the Criminal Court of Record of Dade County dismissing informations which the state had refiled against appellee charging him with conspiracy and grand larceny.
When th'e cases, based upon the first in-formations, were called for trial the record shows the following proceedings:
“THE COURT: Richard Wells.
“MR. HAGGARD: The defense would announce ready subject to the Motion to Dismiss.
“THE COURT: State?
“MR. MORGAN: Your Honor, this is my case.
“THE COURT: Are you ready?
“MR. MORGAN: To tell you the truth I don’t know if I’m ready or not. I have to check to see if the witnesses are here.
“THE COURT: Case dismissed.”
The state, within one month after dismissal of the original information, refiled the charges against the appellee. Thereupon the trial court of its own motion dismissed the refiled informations. In its order the court stated:
“This cause came on to be heard before me, and it appearing to the Court that the above styled cause was refiled without the Court’s permission, it is, thereupon,
“ORDERED AND ADJUDGED, upon the Court’s own motion, that the refiled information in the above entitled cause be and it is hereby dismissed for failure of the State to obtain the Court’s permission to refile the Information.”
The sole point on appeal is whether the trial court erred in dismissing the refiled informations for failure of the state to obtain the court’s permission to refile them.
We have concluded that the trial court’s action was erroneous, therefore, we must reverse. The statute of limitation is not involved here. There is no question as to the timeliness of the proceedings. Neither the statutes, rules nor the decisional authority make any reference to any requirement that the court’s permission must first be obtained. See: State v. Fattorusso, Fla.App. 1969, 228 So.2d 630; Wilk v. State, Fla. App.1969, 217 So.2d 610.
The orders appealed from are hereby reversed.
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Citator
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State v. Braden, 375 So. 2d 49 (Fla. 2d DCA 1979)…any time prior to the swearing in of the jury. State v. Sokol, 208 So. 2d 156 (Fla.3d DCA 1968). Permission of the trial court is not necessary, because the decision to file a nolle prosse is within the sole discretion of the state. State v. Wells, 277 So. 2d 543 (Fla.3d DCA 1973). Since there can be no doubt that the nolle prosse filed by the state to the first information was effective, the question then becomes one of what effect did the dismissal with prejudice of this information have following the noll…
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State v. Kahmke, 468 So. 2d 284 (Fla. 1st DCA 1985)…DCA 1968). State v. Braden, 375 So. 2d 49 (Fla. 2d DCA 1979). Permission of the trial court is not necessary, because the decision to file a nolle prosse is within the sole discretion of the State. State v. Braden, supra, at 50; and State v. Wells, 277 So. 2d 543 (Fla. 3d DCA 1973). Since the actions of the State were authorized, it was an abuse of discretion to dismiss the informations. The sanctions excluding the witnesses do not carry over to the new proceedings, but the State is required to comply with…
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State v. Darnell, 335 So. 2d 638 (Fla. 4th DCA 1976)…the jury, State v. Sokol, 208 So. 2d 156 (3rd DCA Fla.1968). Further, there is no requirement in the law of this state that the trial court’s permission must be first obtained as a condition for the state to re-file such information, State v. Wells, 277 So. 2d 543 (3rd DCA Fla.1973). Such re-filing would not, of course, prevent an attack upon it based on traditional substantive or procedural grounds such as, for instance, double jeopardy. This court had occasion to consider whether a certain general order of…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Headley v. Baron, 228 So. 2d 630 (Fla. 3d DCA 1969)
- Wilk v. State, 217 So. 2d 610 (Fla. 3d DCA 1969)