County Criminal Court: CRIMINAL PROCEDURE – Continuance – Trial court erred in failing to consider factors before denying State’s motion to continue. Order of dismissal reversed. State v. Rigel, No. CRC 04-14 APANO, (Fla. 6th Cir.App.Ct. June 2, 2005).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

            Appellant,

 

Appeal No. CRC 04-14 APANO

UCN522004AP000014XXXXCR

v.

 

NICOLE RIGEL

 

            Appellee.

________________________________/

 

 

Opinion filed _____________________.

 

Appeal from a decision of the

Pinellas County Court

County Judge Karl Grube

 

Kendall Davidson, Esq.

Assistant State Attorney

 

Luke Lirot, Esq.

Attorney for appellee

 

ORDER AND OPINION

 

            (J. Sullivan)

 

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

            This matter was previously remanded to the trial court so that a statement of the evidence could be prepared. That statement has now been filed. A review of the statement reveals that the parties appeared for trial. The State’s witnesses, however, were not at the court for the beginning of the trial. The State made a motion to continue the trial for 10-15 minutes so that its witnesses could appear. The trial court asked the defendant if she was willing to wait and the defendant informed the court that she was not. The trial court then denied the motion to continue. The trial court then told the State that it would dismiss the case if the State was not prepared to either proceed or enter a Nolle Prosse. The State asked for a 5 minute continuance to consult with a supervisor, but this request was denied. The trial court then dismissed the case for lack of prosecution.

The trial court’s action in denying the State’s motion to continue was an abuse of discretion. Pursuant to State v. J.G., 740 So.2d 84 (Fla. 3d DCA 1999), the trial court was to consider: (1) the State’s prior due diligence; (2) whether or not the witnesses would provide substantial favorable testimony; (3) if the witnesses were available and willing to testify; and (4) if the denial of the motion for continuance would cause material prejudice.  The record does not reflect that the trial court properly considered these factors. It was, therefore, error to deny the motion to continue and dismiss the case. This Court has previously set forth the correct procedure trial court’s must follow when faced with these situations. See State v. Coffman, No. CRC 03-45 APANO (Fla. 6th Cir.Ct. Sept. 133, 2004).

            IT IS THEREFORE ORDERED that the order of dismissal is reversed, and this


case is remanded for further proceedings.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this ____ day of May, 2005.

 

 

                                                                                    ___________________________

                                                                                                David A. Demers

                                                                                                Circuit Judge

 

 

 

                                                                                    ____________________________

                                                                                                Robert J. Morris, Jr.

                                                                                                Circuit Judge

 

 

 

                                                                                    ____________________________

                                                                                                Irene S. Sullivan

                                                                                                Circuit Judge

 

cc:   State Attorney

 

         Luke Lirot, Esq.

 

         Judge Grube