Court: CRIMINAL PROCEDURE – Continuance – Trial court erred in dismissing
charges as a sanction for police officer failing to appear as a witness because
the court failed to consider less severe sanctions and failed to make a finding
that defendant was prejudiced. Order of dismissal reversed. State v. Madormo,
No. CRC 05-47 APANO, (
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
v. Appeal No. CRC 05-47 APANO
Opinion filed ____________________.
Appeal from a decision of the
County Judge John Carballo
Della Jensen, Esq.
Assistant State Attorney
Dwight Dudley, 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 case. After reviewing the briefs and record, this Court reverses the decision of the trial court.
The defendant was charged with failure to obey an officer’s directions. The case was set for trial, but one of the officers was unavailable because he had to attend a training class to keep his certification as a DUI instructor. The State filed a motion for continuance, but the trial court denied the motion. When the proceedings resumed later that day, the officer was not there to testify, so the trial court quickly dismissed the case. The State is appealing that dismissal.
Regardless of the
merits of the motion to continue, the trial court prematurely dismissed the
case.1 In State v.L.J.T., 921 So.2d 746 (
Similarly, in the case at bar the trial court failed to consider any less severe sanction and failed to make any finding that the defendant was prejudiced. In fact, the record would not support such a finding of prejudice. Defense counsel was perhaps inconvenienced, but that is not prejudice to the defendant. For these reasons, the order dismissing the charge must be reversed.
IT IS THEREFORE ORDERED that the order dismissing the case is reversed,
and this case is remanded to the trial court for action consistent with this Order and
ORDERED in Chambers at
this _____ day of May, 2006.
David A. Demers
Robert J. Morris, Jr.
Irene H. Sullivan
cc: State Attorney
Dwight Dudley, Esq.
 Once a trial court denies a motion to continue, the trial court should follow these steps. First, it should call the case for trial. Second, it should ask the State how it wishes to proceed. Among the State’s options are to nolle prosequi the case, seek the court’s assistance in enforcing a subpoena, or to proceed without the witness. Third, if the State declines any of these options, the trial court should ask: “What says the defendant?” If the defendant seeks dismissal, then the motion should be ruled upon. If the defendant does not seek dismissal, the trial court should ask the State to demonstrate why dismissal is not appropriate. The trial court should then base its decision on the State’s response.