County Criminal Court:  CRIMINAL PROCEDURE – Continuance – To prevail on a motion to continue, the movant must establish  (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 would cause material prejudice- State was entitled to a continuance based on the above factors-trial court erred in failing to consider four factors - Reversed and remanded.  State v. Mendoza, No. 03-05289CFAES (Fla. 6th Cir. App. Ct. January 3, 2005).

 

 

 

 

 

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,

 

vs.                                                                    Appeal No: 03-05289CFAES

                                                                       

RUBEN MENDOZA,  

Appellee.

____________________________/

 

 

 

 

 

Opinion filed _________________________.

 

Appeal from an order in Pasco County Court

 

County Judge Debra Roberts 

 

Office of the State Attorney

 

Office of the Public Defender

 

 

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the State of Florida's appeal of the trial court's denial of the State's motion for continuance based on witness unavailability.  After reviewing the briefs and record, this Court finds that the trial court abused its discretion.  

            On July 7, 2003, Officer Kris Bambino of New Port Richey Police Department, issued the defendant a criminal citation for operating a motor vehicle without a driver's license.  The defendant filed a motion to suppress, and a hearing was set for November 17, 2003.  When the case was called, the state sounded the halls for Bambino but the officer did not appear.  The state advised the court that it was not prepared to proceed and asked for a continuance. The state informed the court that the witness was served, but could not confirm exactly when she was subpoenaed because all the state had was a 'run sheet' that said the officer was subpoenaed. The defense objected to a continuance. The court gave the officer 15 minutes to appear, but Bambino did not show up. The state again asked for a continuance explaining the officer was served, speedy trial had been waived, and the previous continuance was requested by the defense.  The court denied the motion stating "the state has the burden of proof on a motion to suppress."  The state objected and asked again for a continuance,  arguing that it had shown due diligence in having the officer served.  The motion to continue was denied, and the motion to suppress granted.

            The trial court's refusal to continue an evidentiary hearing is reviewed under an abuse of discretion standard.  State v. Lundy, 531 So. 2d 1020 (Fla. 2d DCA 1988).   To prevail on a motion to continue, the movant must establish  (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 would cause material prejudice.  Geralds v. State, 674 So. 2d 96, 99 (Fla. 1996). 

            The record in this case reveals that the State was entitled to a continuance based on the above factors.  First, the trial court accepted the state's representation that the deputy was subpoenaed.[1] Additionally, at the hearing, the State sounded the halls and passed the case in order to determine whether or not the deputy could be located.  Second, as argued by the state, the fact that the state did not know the details concerning the deputy's absence does not render the witness unavailable  or unwilling to testify. Third, as the deputy who conducted the traffic stop, it is likely the deputy would have offered favorable testimony for the State.  Finally, the denial of the continuance would cause material prejudice to the State since without the deputy, the State was unable to adduce any testimony with regard to the circumstances surrounding the stop.  Therefore, the resulting suppression of the evidence was tantamount to a dismissal of the charges against Mendoza.     

            It does not appear that the trial court took into consideration the four factors set forth in Geralds  before denying the State's motion to continue.  Moreover, there is no evidence in the record that indicates Mendoza would have been prejudiced had the continuance been granted. See Lundy, 531 So. 2d 1020. [2]  Accordingly, it was an abuse of discretion to deny the continuance.

Therefore, it is, 

            ORDERED AND ADJUDGED that the Order Denying the State's Motion to Continue is reversed, and the Order granting defendant's Motion to Suppress is accordingly vacated, and this cause is remanded for further proceedings.

            DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of December, 2004.

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Office of the State Attorney

Office of the Public Defender

 


[1]   Although the court in this case accepted the state's representation that the deputy was served, it would be better practice for the state to offer proof of service.

[2]  This Court's interpretation of Geralds is apparently supported by the recent case  State v. Humphreys, 867 So. 2d 596 (Fla. 2d DCA 2004),  which found that the trial court abused its discretion in denying the state's motion to continue because "[i]t [did] not appear that the trial court took into consideration the four factors set forth in Geralds, 674 So. 2d at 99,  before deciding that a continuance was unwarranted."  Id. at 6.  The Court also noted that there was no indication in the record that defendant would have been prejudiced had the continuance been granted.