IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
Appeal No. CRC 04-14 APANO
Opinion filed _____________________.
Appeal from a decision of the
County Judge Karl Grube
Kendall Davidson, Esq.
Assistant State Attorney
Luke Lirot, Esq.
Attorney for appellee
THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court dismissing the charges against the defendant. After reviewing the briefs and record, this Court reverses the order of dismissal.
This matter was previously remanded to the trial court so that a statement of the evidence could be prepared. That statement has now been filed. A review of the statement reveals that the parties appeared for trial. The State’s witnesses, however, were not at the court for the beginning of the trial. The State made a motion to continue the trial for 10-15 minutes so that its witnesses could appear. The trial court asked the defendant if she was willing to wait and the defendant informed the court that she was not. The trial court then denied the motion to continue. The trial court then told the State that it would dismiss the case if the State was not prepared to either proceed or enter a Nolle Prosse. The State asked for a 5 minute continuance to consult with a supervisor, but this request was denied. The trial court then dismissed the case for lack of prosecution.
The trial court’s
action in denying the State’s motion to continue was an abuse of discretion.
Pursuant to State v. J.G., 740 So.2d 84 (Fla. 3d DCA 1999), the trial
court was to consider: (1) the State’s prior due diligence; (2) whether or not
the witnesses would provide substantial favorable testimony; (3) if the
witnesses were available and willing to testify; and (4) if the denial of the
motion for continuance would cause material prejudice. The record does not reflect that the trial
court properly considered these factors. It was, therefore, error to deny the
motion to continue and dismiss the case. This Court has previously set forth
the correct procedure trial court’s must follow when faced with these
situations. See State v. Coffman, No. CRC 03-45 APANO (
IT IS THEREFORE ORDERED that the order of dismissal is reversed, and this
case is remanded for further proceedings.
AND ORDERED in Chambers at
David A. Demers
Robert J. Morris, Jr.
Irene S. Sullivan
cc: State Attorney
Luke Lirot, Esq.