IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
v. Appeal No. CRC 03-45 APANO
Opinion filed ___________________.
Appeal from a decision of the
County Judge William Overton
Chaila Restall, Esq.
Assistant State Attorney
Jan Press, Esq.
Attorney for appellee
THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court to dismiss the charges against the defendant. After reviewing the briefs and record, this Court reverses the decision.
Despite being served with subpoenas, two police officers failed to appear to testify at trial on behalf of the State.1 This was the second time that witnesses had failed to appear at trial, although the missing witnesses in the second instance were not the same as those in the first. The first time the trial was continued. This time, however, the State’s motion to continue was denied. A review of the transcript reveals that the trial court sua sponte dismissed the charges based on the non-appearance of the witnesses. The State is seeking review of that decision.
This appeal is one of several recent cases in which charges were dismissed because some of the State’s witnesses failed to appear. Those cases revealed some confusion about the correct procedure to be followed. Therefore, a summary of the required steps is in order.
If one of the State’s witnesses fails to appear, then the trial court should ask the State if it is ready to proceed without the witness. The State must either proceed or choose another alternative. The State should be independently aware of what its options are and what the consequences of selecting a particular option might be. Some of these options are: ask for a continuance; seek the Court’s assistance in enforcing any subpoenas; or nolle prosequi the case. It is the State’s option; but the State should not stand mute.
State chooses to move for a continuance, then the trial court must analyze the
motion using the four-pronged analysis set forth in State v. J.G., 740
So.2d 84 (Fla. 3d DCA 1999). The trial court must consider: (1) if there was
prior due diligence; (2) whether or not substantial favorable testimony would
be provided by the witness; (3) whether or not the witness is available and
willing to testify; and (4) whether or not a denial of the continuance would
cause material prejudice. The trial court must also consider if the delay would
unfairly prejudice the defendant.
law generally disapproves of the trial court dismissing criminal charges simply
as a sanction against the State because its witnesses fail to appear. See e.g.,
State v. L.E., 754 So.2d 60 (
Turning to the case at bar, it appears that the trial court did sua sponte dismiss the charges without engaging in the analysis outlined herein. Therefore, the order of dismissal must be set aside.
IT IS THEREFORE ORDERED that the decision of the trial court is reversed,
and this case is remanded to the trial court for action consistent with this opinion.
AND ORDERED in Chambers at
1 This Court recognizes the frustration that this causes trial judges in managing their calendars.