COUNTY CRIMINAL COURT: CRIMINAL PROCEDURE – Dismissal – When State failed to ensure the defendant’s presence at trial, dismissal not warranted where no showing of prejudice to defendant made. Order of dismissal reversed. State v. Stuart, No. CRC 05-3 APANO, (Fla. 6th Cir.App.Ct. April 19, 2006).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

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 05-3 APANO

UCN522005AP000003XXXXCR

TODD STUART

 

            Appellee.

___________________________/

 

Opinion filed _______________.

 

Appeal from a decision of the

Pinellas County Court

County Judge Thomas Freeman

 

C. Marie King, Esq.

Assistant State Attorney

 

Holly Hughes, Esq.

Assistant Public Defender

ORDER AND OPINION

            (J. Sullivan)

 

            THIS MATTER is before the Court on the State’s appeal of an order of the Pinellas County Court dismissing the case. After reviewing the briefs and record, this Court reverses the decision of the trial court.

            The defendant was charged with seven counts of making worthless checks. The State and defendant entered into plea negotiations, with the State believing that a plea in absentia would be filed. On the date of trial, however, the plea had not been filed. In addition, the State had failed to secure the defendant’s presence, as it was required to do because the defendant was in custody. Instead, the State made a motion for continuance, informing the court that it mistakenly believed the defendant was going to enter a plea. Defense counsel objected, admitting that a plea in absentia had been discussed, but claiming the State failed to “get back” with them. The trial court denied the motion to continue and dismissed the charges “for failure of the State to follow up.” The State is appealing the dismissal.

            The State claims that the trial court should have granted its motion to continue because there would be no prejudice to the defendant if his trial were rescheduled --- he was in jail at the time on unrelated charges. A review of the transcript of the hearing reveals that the defense did not demonstrate any prejudice to the defendant. Also, the State claims the trial court improperly dismissed the case without considering other less drastic sanctions.

            The case of State v. L.J.T., 31 Fla. L.Weekly D527 (Fla. 5th DCA Feb. 17, 2006), is on point. (Although the Court notes it was decided subsequent tothe trial court’s ruling). In L.J.T. the trial court dismissed the charges because the Department of Juvenile Justice failed for the second time to have the juvenile defendant transported to court for a hearing. The appellate court reversed the dismissal, finding that it was an abuse of discretion. The court wrote that: “Courts restrict dismissal to ‘cases where no other sanction can remedy the prejudice to the defendant … to insure that the public’s interest in having persons accused of crimes brought to trial is not sacrificed in the name of punishing a prosecutor’s misconduct.’ The court went on to state: “Dismissing charges without a showing of prejudice to the defendant awards the defendant a windfall and punishes the public rather than the prosecutor.” The court also noted that the orders dismissing the charges contained no finding of prejudice to the defendant and the record would not support such a finding. Finally, the court held that the trial court failed to consider less drastic sanctions.

            Similarly, in the case at bar, there was no prejudice to the defendant. As noted above, he was in jail on unrelated charges and apparently there were almost completed negotiations for him to enter a plea to the charges. In addition, the record does not reflect that the trial court considered less drastic sanctions other than dismissal of the charges. Accordingly, pursuant to the holding in L.J.T., the order dismissing the charges is reversed.    

            IT IS THEREFORE ORDERED that the order dismissing the case is reversed, and this matter 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 April, 2006.

                                                                                    ___________________________

                                                                                                David A. Demers

                                                                                                Circuit Judge

 

 

 

                                                                                    ___________________________

                                                                                                Robert J. Morris, Jr.

                                                                                                Circuit Judge

 

 

 

                                                                                    ____________________________

                                                                                                Irene H. Sullivan

                                                                                                Circuit Judge

cc:        State Attorney

            Public Defender

            Judge Freeman