County Criminal Court: CRIMINAL
PROCEDURE – Continuance – To prevail on a motion to continue, the
movant must establish (1) prior due
diligence to obtain the witness's presence; (2) that substantially favorable
testimony would have been forthcoming; (3) that the witness was available and
willing to testify; and (4) that the denial of the continuance would cause
material prejudice- State was
entitled to a continuance based on the above factors-judgment reversed- State
v. Starrett, No. 04-0141CFAES
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
vs. Appeal No: CRC04-141CFAES
JAMES MELVILLE STARRETT,
Opinion filed _________________________.
County Judge Debra Roberts
Michael J. Harris.
Attorney for Appellant
Scott D. Miller
Attorney for Appellee
ORDER AND OPINION
THIS MATTER is before the Court on the State of
On September 28, 2003, Deputy Mallaso of the Pasco County Sheriff's Office stopped the appellee, James Starrett, for speeding. Based on Deputy Mallaso's observations, Deputy M. Jones was dispatched to conduct a DUI investigation. Starrett was arrested for driving under the influence.
On November 21, 2003, Starrett filed a motion to suppress arguing that the stop was illegal. A hearing was set for December 15, 2003. On November 26, 2003, Deputy Mallaso was served with a subpoena for the December 15, 2003, suppression hearing. On the date of the hearing, Mallaso did not appear. The State requested to sound the halls and momentarily pass the case. Another case was taken up while the State attempted to locate Deputy Mallaso. When the motion was re-addressed by the Court, the State advised that the deputy did not appear and requested a continuance. The Court denied the State's request and granted Starrett's motion the suppress.
The trial court's refusal to continue an evidentiary
hearing is reviewed under an abuse of discretion standard. State v. Lundy, 531 So. 2d 1020 (
The record in this case reveals that the State was entitled to a continuance based on the above factors. First, the State exercised due diligence to secure the deputy's presence at the hearing serving him with a subpoena almost three weeks prior to the hearing, as noted by the court. Additionally, at the hearing, the State sounded the halls and passed the case in order to determine whether or not the deputy could be located. Second, the deputy was employed by the Pasco County Sheriff's Office and therefore, was a local officer who would be available and willing to testify. Third, as the deputy who conducted the traffic stop, and as the deputy whose observations prompted a DUI investigation, it is likely the deputy would have offered favorable testimony for the State. Finally, the denial of the continuance would cause material prejudice to the State since without the deputy, the State was unable to adduce any testimony with regard to the circumstances surrounding the stop. Therefore, the resulting suppression of the evidence was tantamount to a dismissal of the DUI charges against Starrett.
It does not appear that the trial court took into consideration the four factors set forth in Geralds before denying the State's motion to continue. Moreover, there is no evidence in the record that indicates Starrett would have been prejudiced had the continuance been granted. See Lundy, 531 So. 2d 1020.  Accordingly, it was an abuse of discretion to deny the continuance.
Therefore, it is,
ORDERED AND ADJUDGED that the Order Denying the State's Motion to Continue is reversed, and the Order granting defendant's Motion to Suppress is accordingly vacated, and this cause is remanded for further proceedings.
DONE AND ORDERED in Chambers at New Port Richey,
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
Honorable Debra Roberts
Kristie Ruppe and Michael J. Harris
Assistant State Attorney's
Scott D. Miller, Esq.
 This Court's interpretation of Geralds
is apparently supported by the recent case
State v. Humphreys, 867 So. 2d 596 (