IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
STATE OF
Appellant,
v. Appeal No. CRC 06-24 APANO
UCN522006AP00024XXXXCR
LUIS ALBERT FLORES
Appellee.
_____________________________/
Opinion filed _________________.
Appeal from a decision of the
County Judge Patrick Caddell
Patricia Manteiga, Esq.
Assistant State Attorney
Daniel Fischetti, Esq.
Attorney for appellee
ORDER AND OPINION
THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court dismissing the battery charge against the defendant. After reviewing the briefs and record, this Court reverses the decision of the trial court.
For various reasons, the trial in this case was delayed. Twice a trial date was set, but had to be continued. When the State asked for a third continuance the trial court refused and dismissed the case. The State re-filed the charge, but the trial court dismissed that charge. The State is appealing that decision.
As noted by the State in its brief, the Second District Court of Appeal outlined the procedure for re-filing a charge after it has been dismissed by a trial court. “When charges against an accused are dismissed for any reason, the state can refile those same charges at any time unless prevented from doing so by (1) the constitutional prohibition against double jeopardy, (2) the doctrine of res judicata, (3) a statute of limitations, or (4) the dismissal of the first case with prejudice.” State v. Bacon, 385 So.2d 1160, 1161 (Fla. 2d DCA 1980). In the case at bar, the defendant claims that the trial court intended the dismissal of the first charge to be with prejudice --- thereby barring the State from re-filing the charge. In support of his argument the defendant points to the transcript of the hearing in which the re-filed charge was dismissed. A review of that transcript reveals that the trial court intended for the first dismissal to be with prejudice, and that the trial court believed the State should have known that from the context.
In State v.
Schaefer, 376 So.2d 927 (
Similarly, in the case at bar the State’s right to appeal the initial dismissal would be prejudiced if this Court were to rely upon the trial court’s after-the-fact statement that it intended the initial dismissal to be with prejudice. Although the trial court may have understood the initial dismissal to be with prejudice, there was no “clearly identifiable manifestation” made at the time of the initial dismissal. Therefore, under the facts of this case, this Court cannot find the dismissal to be with prejudice.
The defendant did not contend that, other than the initial dismissal being with prejudice, there was any impediment to the State re-filing the case. Therefore, the State should have been allowed to proceed.
IT IS THEREFORE ORDERED that the order dismissing the charges is reversed, and this matter is remanded to the trial court with directions to reinstate the information.
DONE
AND ORDERED in Chambers at
_____________________________
David A. Demers
Circuit Judge
_____________________________
Raymond O. Gross
Circuit Judge
______________________________
Robert J. Morris, Jr.
Circuit Judge
cc: State Attorney
Daniel Fischetti, Esq.
Judge Caddell