County Criminal 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, (Fla. 6th Cir.App.Ct. June 13, 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 05-47 APANO

UCN522005AP000047XXXXCR

JOSEPH MADORMO

 

            Appellee.

________________________________/

 

 

Opinion filed ____________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge John Carballo

 

Della Jensen, Esq.

Assistant State Attorney

 

Dwight Dudley, Esq.

Attorney for appellee

 

ORDER AND OPINION

 

            (J. Morris)

 

            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 (Fla. 5th DCA 2006), the appellate court found the trial court abused its discretion when it dismissed charges against the defendant. The court noted that dismissal was an extreme sanction that should not be used when lesser sanctions would achieve the same result. The court went on to note that: “[c]ourts 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.” Id. at 748. Moreover, the court reasoned that: “[d]ismissing charges without a showing of prejudice to the defendant awards the defendant a windfall and punishes the public rather than the prosecutor.” Id. The court ruled that the order dismissing the charges did not contain any finding of prejudice to the defendant, and that the record did not support such a finding. The court concluded by noting that the trial court improperly failed to consider any less severe sanction.

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

 

Opinion.

 

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida

 

this _____ day of May, 2006.

 

 

                                                                                    _____________________________

                                                                                                David A. Demers

                                                                                                Circuit Judge

 

 

 

 

                                                                                    ______________________________

                                                                                                Robert J. Morris, Jr.

                                                                                                Circuit Judge

 

 

 

 

                                                                                    ______________________________

                                                                                                Irene H. Sullivan

                                                                                                Circuit Judge

 

cc:        State Attorney

 

            Dwight Dudley, Esq.

 

            Judge Carballo



 [1] 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.