COURT: CRIMINAL PROCEDURE – Continuance – Trial court erred in dismissing
charges as a sanction for police officer failing to appear as a witness because
court failed to consider less severe sanctions and failed to make a finding
that the defendant was prejudiced. Order of dismissal reversed. State v.
Oliver, No. CRC 05-78 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 05-78 APANO
Opinion filed _________________.
Appeal from a decision of the
Senior Judge Radford Smith
John Thacker, Esq.
Assistant State Attorney
ORDER AND OPINION
THIS MATTER is before the Court on the State’s appeal of a decision of the Pinellas County Court dismissing the charge. After reviewing the brief and record --- the appellee failed to file an answer brief --- this Court reverses the decision of the trial court.
The defendant was charged with violating a city ordinance prohibiting the possession of an open container of alcohol. Trial was set, but the State filed a written motion to continue, claiming it was unable to timely subpoena necessary officers as witnesses. The trial court denied the motion to continue, and then sua sponte dismissed the charge. The State objected to the dismissal, and has filed this appeal seeking review of the trial court’s decision.
trial court abused its discretion in sua
sponte dismissing the charge. Regardless of the merits of the motion to
continue, the trial court should not have dismissed the charge. In State
v. Colon, 909 So.2d 536 (
In State v.L.J.T., 921 So.2d 746 (
Similarly, in the case at bar, the trial court imposed the extreme sanction of dismissal even though the defendant did not ask for that relief --- thereby thwarting the State from exercising available alternatives. In addition, the trial court improperly 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. For these reasons, the order dismissing the charge is reversed.
IT IS THEREFORE ORDERED that the order dismissing the charge is reversed, and this case is remanded to the trial court for further action consistent with this Order and Opinion.
AND ORDERED in Chambers at
J. Thomas McGrady
John A. Schaefer
* Judge Peters did not take part in these proceedings.
cc: State Attorney
 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.