County Criminal Court: CRIMINAL PROCEDURE – Dismissal – Failure of court-appointed interpreter to appear in court did not justify sua sponte dismissal because trial court failed to consider other alternatives and there was no showing that the State was responsible for the appearance of the interpreter. – Order of dismissal reversed. State v. Lai, No. CRC 04-15 APANO (Fla. 6th Cir.App.Ct. Oct. 19, 2004).

 

 

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                                                                                                                   Appeal No. CRC 04-15 APANO

                                                                                         UCN522004AP000015XXXXCR

                                                                                   

                                                                                         Appeal No. CRC 04-16 APANO

                                                                                         UCN522004AP000016XXXXCR

LE HUU LAI

 

            Appellee.

____________________________/

 

 

Opinion filed __________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge Thomas Freeman

 

Aaron Slavin, Esq.

Assistant State Attorney

 

Frank Winstead, Esq.

Attorney for appellee

 

ORDER AND OPINION

 

            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 decision of the trial court.

            The defendant was charged with two violations --- possession of an undersized spotted sea trout and possession of that fish out of season. The defendant spoke only Vietnamese. An interpreter was ordered (apparently by the trial court) for the defendant’s pre-trial hearing, but the interpreter failed to appear. The trial judge informed the State that if the interpreter again failed to appear he would dismiss the case. At the next pre-trial hearing the interpreter failed to appear, and the trial judge dismissed the charges.

            The State argues that dismissal under these circumstances was improper. This Court agrees. First, there is nothing to indicate that it was the State who had the burden to locate and ensure the appearance of the interpreter. §90.606 Fla. Stat. provides that if the court finds a need for an interpreter then one shall be sworn to interpret or translate. It does not, however, obligate the State to ensure the attendance of an interpreter.1

            Even if the State did have an obligation to obtain the interpreter, dismissal of the charges for the failure of the interpreter to appear was not warranted. The record shows that the trial court sua sponte dismissed the charges as a sanction without considering other alternatives. This is similar to dismissing the charges when a witness fails to appear. Courts have consistently disapproved of such dismissals as too drastic a sanction. 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). “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). Similarly, this Court finds that dismissal under these circumstances to be too drastic a sanction --- particularly when it is unclear that the State had the obligation to provide an interpreter in the first place.

 IT IS THEREFORE ORDERED that the order of dismissal is reversed, and this case is remanded to the trial court for action consistent with this Order and Opinion.

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

 

 

 

 

 

                                                                                    ________________________

                                                                                                James R. Case

                                                                                                Circuit Judge

 

 

 

 

                                                                                    _________________________

                                                                                                Nancy Moate Ley

                                                                                                Circuit Judge

 

 

 

 

                                                                                    ________________________

                                                                                                John A. Schaefer

                                                                                                Circuit Judge

 

 

cc:   State Attorney

 

        Frank Winstead, Esq.

 

        Judge Freeman

                                                                                        


1 This Court believes that typically an employee in the Courts Administration office arranges for interpreters usually pursuant to a request that may emanate from a variety of sources.