County Criminal Court: CRIMINAL PROCEDURE – Continuance – Since the State met all requirements for a continuance, its motion should have been granted, rendering the subsequent granting of Appellee’s Motion to Suppress in error.  Reversed.   State v. Sanders, No. CRC10008071CFAWS, (Fla. 6th Cir.App.Ct. June 1, 2011).

 

 

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 PASCO COUNTY

APPELLATE DIVISION

 

STATE OF FLORIDA,     

                     Appellant,

 

                                                              UCN:            512010CF008071A000WS

v.                                                           Case No:      CRC-10-08071-CFAWS

                                                              Lower No:    10-5847-XDPT-WS

 

 

 

ANGELA PAIGE SANDERS,                                     

                     Appellee.                                             

_____________________________/

Appeal from Pasco County Court

County Judge Debra Roberts

 

Christopher C. Dyer, A.S.A.

for Appellant

 

Ron Smith, Esq.

for Appellee

 

 

 

ORDER AND OPINION

 

          The State appeals the trial court’s order denying its motion for a continuance, which resulted in the trial court granting Appellee’s motion to suppress.  Since the State met all the requirements for a continuance, its motion should have been granted.  Appellee’s motion to suppress also should not have been granted as a consequence.  Therefore, this Court reverses both orders as set forth below.

 

FACTUAL BACKGROUND

On February 11, 2010, Appellee was charged with Driving while Under the Influence.  Appellee filed a motion to suppress all evidence resulting from the stop.  The hearing on Appellee’s motion to suppress was scheduled for July 30, 2010.  At the State’s request, the parties agreed prior to the hearing to reschedule because Officer Pascalli would not be available on that date.  The hearing was rescheduled to October 22, 2010.

At the hearing on the motion to suppress, Officer Daniel Joseph Rengering testified that he was on patrol February 11, 2010 at around 10:00 in the morning.  There was a complaint that Appellee was improperly parked at a convenience store at the corner of Gulf Drive and Grand Boulevard in New Port Richey.  Appellee’s red Mustang was partially parked in one lane and partially in either a handicapped or fire lane grid that was lined off.  Appellee was in the driver’s seat with her vehicle running and her head back.  Officer Rengering did not know whether Appellee was awake or not.  Officer Pascalli tapped on her window and tried to speak to her.  Appellee’s speech was slurred, her eyes were glassy, and she was very lethargic.  Appellee stated that she had just gotten off work and this was early in the morning.  Officer Rengering was standing next to Officer Pascalli, who was a DUI/STEP officer.  Officer Pascalli asked Appellee to exit the vehicle.  Officer Pascalli positioned his vehicle so he could record the incident and the field sobriety exercises.

On cross-examination, Officer Rengering admitted that the case was really Officer Pascalli’s case because he conducted the field sobriety exercises, took her into custody, and wrote the tickets.  Officer Rengering still could not remember whether Appellee was parked in a fire lane or handicapped lane.  He could not say whether Appellee was in violation of any statute. 

At this point during the hearing, the State informed the trial court that it would have liked to call Officer Pascalli, but he called in sick that morning.  The State did not notify the court prior to the start of the hearing because he had received information that his officers were both present.  He had assumed that it was both officers for this case; however, the other officer was for another case.  As such, the State requested a continuance. 

Defense counsel pointed that Officer Pascalli also failed to appear at the DHSMV hearing after being subpoenaed.  Officer Pascalli was also not present before Judge Wansboro on the improper parking ticket, on May 7, 2010.  The trial court commented that Judge Wansboro dismissed that case because the officer did not appear.  Defense counsel argued that the State could not show in good faith that the officer would show up if the case was continued.  The State countered that the motion to continue should be granted, as it has made a good faith effort to get the officer there for the hearing, and the officer is still alive and working. 

The trial court denied the State’s request for a continuance and stated that the motion to suppress would have to be granted.  The trial court issued its amended order denying the State’s Motion to Continue and granting Appellee’s Motion to Suppress on November 29, 2010. The State filed a timely notice of appeal on December 7, 2010.

                

               

LAW AND ANALYSIS

          A trial court's ruling on a motion for continuance is reviewed for an abuse of discretion.  J.S. v. State, 796 So. 2d 1256 (Fla. 4th DCA 2001).  An appellate court should not reverse the denial of a motion for continuance unless there has been a plain abuse of discretion that clearly and affirmatively appears in the record.  Magill v. State, 386 So. 2d 1188, 1189 (Fla. 1980).  A party seeking a continuance due to witness unavailability must establish four factors: (1) prior due diligence to obtain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance caused material prejudice.  State v. Humphreys, 867 So. 2d 596, 598 (Fla. 2d DCA 2004). 

          The State met the four factors necessary to receive a continuance.  First, the State exercised prior due diligence to secure Officer Pascalli’s presence at the hearing by issuing and serving a subpoena on the officer.  Second, Officer Pascalli would provide substantially favorable testimony, as he was the lead officer, who conducted the field sobriety exercises, took Appellee into custody, and wrote the tickets.  Third, Officer Pascalli was still employed by the New Port Richey Police Department, but was ostensibly sick that morning.  Finally, the State was materially prejudiced because without Officer Pascalli, it was unable to adduce sufficient testimony to justify the stop.  Thus, all four factors were met.

          When denying a continuance due to witness unavailability amounts to a dismissal of the charges, such denial has been held an abuse of discretion when there was no showing of prejudice to the defendant.  Cf. State v. Lundy, 531 So. 2d 1020 (Fla. 2d DCA 1988).  Here, the trial court’s denial of the State’s motion to continue and the resulting suppression of evidence were tantamount to a dismissal of the charges.  The State was left with no evidence on which to proceed in its prosecution.  The State must be given a fair opportunity to be heard.  See, Humphreys, at 598.  

          While we understand the trial court’s frustration of not finding out until the middle of a hearing that a material witness was not present, we still must reverse.  The trial court could have issued an order to show cause requiring Officer Pascalli to appear before the court to explain why he should not be declared in contempt.  The trial court’s order denying the State’s motion for continuance and the resulting order granting Appellee’s motion to suppress shall be reversed.  It is therefore,

          ORDERED AND ADJUDGED that the trial court’s order denying The State’s motion to continue is hereby REVERSED, and the trial court’s subsequent order granting Appellee’s motion to suppress is hereby REVERSED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 1ST day of June 2011.

Original order entered on June 1, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.