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-judgment reversed- State v. Starrett, No. 04-0141CFAES (Fla. 6th Cir. App. Ct. October 29, 2004).  

 

 

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: CRC04-141CFAES

 

JAMES MELVILLE STARRETT,

Appellee.

____________________________/

 

 

Opinion filed _________________________.

 

Appeal from Pasco County Court

 

County Judge Debra Roberts

 

Kristie Ruppe

Michael J. Harris.

Attorney for Appellant

 

Scott D. Miller

Attorney for Appellee

 

 

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 first motion for continuance based on witness unavailability.  After reviewing the briefs and record, this Court finds that the trial court abused its discretion.  

            On September 28, 2003, Deputy Mallaso of the Pasco County Sheriff's Office stopped the appellee, James Starrett, for speeding.  Based on Deputy Mallaso's observations, Deputy M. Jones was dispatched to conduct a DUI investigation.  Starrett was arrested for driving under the influence.

            On November 21, 2003, Starrett filed a motion to suppress arguing that the stop was illegal.  A hearing was set for December 15, 2003.  On November 26, 2003,  Deputy Mallaso was served with a subpoena for the December 15, 2003, suppression hearing. On the date of the hearing,  Mallaso did not appear.  The State requested to sound the halls and momentarily pass the case.  Another case was taken up while the State attempted to locate Deputy Mallaso.  When the motion was re-addressed by the Court, the State advised that the deputy did not appear and requested a continuance.  The Court denied the State's request and granted Starrett's motion the suppress.

            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 State exercised due diligence to secure the deputy's presence at the hearing serving him with a subpoena almost three weeks prior to the hearing, as noted by the court.  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, the deputy was employed by the Pasco County Sheriff's Office and therefore, was a local officer who would be available and willing to testify.  Third, as the deputy who conducted the traffic stop, and as the deputy whose observations prompted a DUI investigation, 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 DUI charges against Starrett.    

            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 Starrett would have been prejudiced had the continuance been granted. See Lundy, 531 So. 2d 1020. [1]  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 October, 2004.

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Honorable Debra Roberts

 

Kristie Ruppe and Michael J. Harris

Assistant State Attorney's

 

Scott D. Miller, Esq.  

 


[1]  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.