COUNTY CRIMINAL COURT: CRIMINAL PROCEDURE – Dismissal – Trial court erred in dismissing new charges where prior dismissal did not state that it was with prejudice. Order of dismissal reversed. State v. Flores, No. CRC 06-24 APANO, (Fla. 6th Cir.App.Ct. Sept. 4, 2007).











v.                                                                                                                                          Appeal No. CRC 06-24 APANO







Opinion filed _________________.


Appeal from a decision of the

Pinellas County Court

County Judge Patrick Caddell


Patricia Manteiga, Esq.

Assistant State Attorney


Daniel Fischetti, Esq.

Attorney for appellee




            THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court dismissing the battery charge against the defendant. After reviewing the briefs and record, this Court reverses the decision of the trial court.

            For various reasons, the trial in this case was delayed. Twice a trial date was set, but had to be continued. When the State asked for a third continuance the trial court refused and dismissed the case. The State re-filed the charge, but the trial court dismissed that charge. The State is appealing that decision.

            As noted by the State in its brief, the Second District Court of Appeal outlined the procedure for re-filing a charge after it has been dismissed by a trial court. “When charges against an accused are dismissed for any reason, the state can refile those same charges at any time unless prevented from doing so by (1) the constitutional prohibition against double jeopardy, (2) the doctrine of res judicata, (3) a statute of limitations, or (4) the dismissal of the first case with prejudice.” State v. Bacon, 385 So.2d 1160, 1161 (Fla. 2d DCA 1980). In the case at bar, the defendant claims that the trial court intended the dismissal of the first charge to be with prejudice --- thereby barring the State from re-filing the charge. In support of his argument the defendant points to the transcript of the hearing in which the re-filed charge was dismissed. A review of that transcript reveals that the trial court intended for the first dismissal to be with prejudice, and that the trial court believed the State should have known that from the context.

In State v. Schaefer, 376 So.2d 927 (Fla. 2d DCA 1979) the appellate court addressed a similar issue when the trial court dismissed a case because of discovery issues and subsequently dismissed the State’s re-filing of the same charge. The  Schaefer court declined to interpret the initial dismissal to be with prejudice because “the [trial] court did not specify that dismissal was final or with prejudice.” Id. at 928. The appellate court went on to say that: “[w]e decline to hold the dismissal to be with prejudice without some clearly identifiable manifestation that the trial court intended such a result.” Id. A major consideration for the appellate court was the concern that the State would have its right to appeal impaired if the order were not specifically with prejudice.

Similarly, in the case at bar the State’s right to appeal the initial dismissal would be prejudiced if this Court were to rely upon the trial court’s after-the-fact statement that it intended the initial dismissal to be with prejudice. Although the trial court may have understood the initial dismissal to be with prejudice, there was no “clearly identifiable manifestation” made at the time of the initial dismissal. Therefore, under the facts of this case, this Court cannot find the dismissal to be with prejudice.

The defendant did not contend that, other than the initial dismissal being with prejudice, there was any impediment to the State re-filing the case. Therefore, the State should have been allowed to proceed.

            IT IS THEREFORE ORDERED that the order dismissing the charges is reversed, and this matter is remanded to the trial court with directions to reinstate the information.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of August, 2007.



                                                                                    David A. Demers

                                                                                    Circuit Judge






                                                                                    Raymond O. Gross

                                                                                    Circuit Judge






                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Judge


cc:        State Attorney


            Daniel Fischetti, Esq.


            Judge Caddell