COUNTY CRIMINAL COURT: CRIMINAL PROCEDURE – Continuance – Trial court erred in dismissing charges as a sanction for police officer failing to appear as a witness because court failed to consider less severe sanctions and failed to make a finding that the defendant was prejudiced. Order of dismissal reversed. State v. Hinton, No. CRC 05-77 APANO, (Fla. 6th Cir.App.Ct. May 11, 2006).

 

 

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 PINELLAS COUNTY

 

 

STATE OF FLORIDA

 

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 05-77 APANO

UCN522005AP000077XXXXCR

JEROME HINTON

 

            Appellee.

____________________________/

 

Opinion filed _________________.

 

Appeal from a decision of the

Pinellas County Court

Senior Judge Radford Smith

 

John Thacker, Esq.

Assistant State Attorney

 

ORDER AND OPINION

 

            (J. Sullivan)

 

            THIS MATTER is before the Court on the State’s appeal of a decision of the Pinellas County Court dismissing the charge. After reviewing the brief and record --- the appellee failed to file an answer brief --- this Court reverses the decision of the trial court.

            The defendant was charged with violating a city ordinance prohibiting the possession of an open container of alcohol. Trial was set, but the State filed a written motion to continue, claiming it was unable to timely subpoena necessary officers as witnesses. The trial court denied the motion to continue, and then sua sponte dismissed the charge. The State objected to the dismissal, and has filed this appeal seeking review of the trial court’s decision.

            The trial court abused its discretion in sua sponte dismissing the charge. Regardless of the merits of the motion to continue, the trial court should not have dismissed the charge. [1]In State v. Colon, 909 So.2d 536 (Fla. 2d DCA 2005), the appellate court reversed the dismissal of criminal charges, noting that:  “[d]ismissal of criminal charges is an extreme sanction reserved solely for those instances where no feasible alternative exists.”  Id. at 537. It also faulted the trial court for dismissing the charges even though the defendant did not ask that they be dismissed. The court found that by granting the defendant relief he had not even requested the trial court foreclosed the State from exercising available alternatives.

 In State v.L.J.T., 921 So.2d 746 (Fla. 5th DCA 2006), the appellate court found the trial court abused its discretion when it dismissed charges against the defendant. The court noted that dismissal was an extreme sanction that should not be used when lesser sanctions would achieve the same result. The court went on to note that: “[c]ourts restrict dismissal to cases where no other sanction can remedy the prejudice to the defendant … to insure that the public’s interest in having persons accused of crimes brought to trial is not sacrificed in the name of punishing a prosecutor’s misconduct.” Id. at 748. Moreover, the court reasoned that: “[d]ismissing charges without a showing of prejudice to the defendant awards the defendant a windfall and punishes the public rather than the prosecutor.” Id. The court ruled that the order dismissing the charges did not contain any finding of prejudice to the defendant, and that the record did not support such a finding. The court concluded by noting that the trial court improperly failed to consider any less severe sanction.

            Similarly, in the case at bar, the trial court imposed the extreme sanction of dismissal even though the defendant did not ask for that relief --- thereby thwarting the State from exercising available alternatives. In addition, the trial court improperly failed to consider any less severe sanction and failed to make any finding that the defendant was prejudiced. In fact, the record would not support such a finding of prejudice. For these reasons, the order dismissing the charge is reversed.

            IT IS THEREFORE ORDERED that the order dismissing the charge is reversed, and this case is remanded to the trial court for further action consistent with this Order and Opinion.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of April, 2006.

                                                                        ________________________________

                                                                                    David A. Demers

                                                                                    Circuit Judge

 

 

 

                                                                        _______________________________

                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Judge

 

 

                                                                        ________________________________

                                                                                    Irene H. Sullivan

                                                                                    Circuit Judge

cc:        State Attorney

            Jerome Hinton


[1] Once a trial court denies a motion to continue, the trial court should follow these steps. First, it should call the case for trial. Second, it should ask the State how it wishes to proceed. Among the State’s options are to nolle prosequi the case, seek the court’s assistance in enforcing a subpoena, or to proceed without the witness. Third, if the State declines any of these options, the trial court should ask: “What says the defendant?” If the defendant seeks dismissal, then the motion should be ruled upon. If the defendant does not seek dismissal, the trial court should ask the State to demonstrate why dismissal is not appropriate. The trial court should then base its decision on the State’s response.