County Criminal Court:  CRIMINAL PROCEDURE – Dismissal – Trial court improperly dismissed the case because the State’s witnesses failed to appear at trial. The trial court failed to consider other alternatives to dismissal and failed to properly analyze the State’s motion to continue. – Order granting defendant’s motion to dismiss reversed.  State v. Coffman, No. CRC 03-45 APANO (Fla. 6th Cir. App. Ct. Sept. 13, 2004).














v.                                                                                                                                                                   Appeal No. CRC 03-45 APANO









Opinion filed ___________________.



Appeal from a decision of the

Pinellas County Court

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.

If the 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. Id. at 85. If the motion to continue is denied, then it is for the State to decide what to do next. Among its options are to nolle prosequi the case or to proceed without the witness. Obviously, if the State elects to proceed without a critical witness, it risks not being able to prove its case. If that happens, the defendant should move to dismiss, which would then be ruled upon.

            Case 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 (Fla. 3d DCA 2000); State v. Pope, 675 So.2d 165 (Fla. 3d DCA 1996); State v. Cohen, 662 So.2d 430 (Fla. 3d DCA 1995); and State v. T.H., 592 So.2d 759 (Fla. 5th DCA 1992). Although there may be some circumstances in which this procedure might be appropriate, the typical situation where the State’s witnesses fail to timely appear should be governed by the above-described procedure, and not be resolved by a sua sponte dismissal of the State’s charges as a sanction. “Dismissal of criminal charges is only an action of last resort where no viable alternative exists.” State v. Ottrock, 573 So.2d 169 (Fla. 4th DCA 1991).

            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.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of September, 2004.



                                                                                                James R. Case

                                                                                                Circuit Judge






                                                                                                Nancy Moate Ley

                                                                                                Circuit Judge






                                                                                                John A. Schaefer

                                                                                                Circuit Judge


cc:   State Attorney


         Jan Press, Esq.


         Judge Overton







1 This Court recognizes the frustration that this causes trial judges in managing their calendars.