County Criminal Court: CRIMINAL LAW – Destruction or loss of evidence – Motion to dismiss properly denied where there was no showing that the evidence was exculpatory or the State or its agents acted in bad faith in destroying it. Judgment and sentence affirmed. Johnston v. State, No. CRC 06-61 APANO (Fla. 6th Cir.App.Ct. December 31, 2007).

 

 

 

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

 

 

ANTHONY LYNN JOHNSTON

 

            Appellant,                                            

v.                                                                     Appeal No. CRC 06-61 APANO

                                                                        UCN522006AP000061XXXCR

 

STATE OF FLORIDA

 

            Appellee.

___________________________/

 

Opinion filed ________________.

 

Appeal from a judgment and sentence

imposed by the Pinellas County Court

County Court Judge John D. Carballo

 

Hans M. Grieble, Esquire

Attorney for appellant

 

C. Marie King, Esquire

Assistant State Attorney

ORDER AND OPINION

 

            THIS MATTER is before the Court on the defendant, Anthony Lynn Johnston’s, appeal from a judgment and sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the decision of the trial court.

            The defendant claims that the trial court erred in not granting his motion to dismiss. He pleaded no contest to DUI charges, reserving his right to appeal the order denying his motion to dismiss. The defendant argues that the destruction of evidence --- a videotape of his field sobriety exercises ---- required the dismissal of the charges.

            This Court has addressed this issue numerous times. Dismissal is justified only: (1) when the evidence is known to be exculpatory at the time it is destroyed and the defendant could not secure it through other reasonably available means; or (2) if the evidence might be exculpatory and the State or its agents acted in bad faith in destroying the evidence. See State v. Weingarten, No. CRC 98-19195 CFANO (Fla. 6th Cir. App. Ct. Oct. 10, 1998); State v. Eno, No. CRC 01-8085 CFANO (Fla. 6th Cir. App. Ct. April 28, 2003) and cases cited therein.

            In the case at bar, the trial court specifically found the evidence was not definitely exculpatory and the State or its agents did not act in bad faith. Therefore, pursuant to the above-cited authority, the trial court correctly denied the defendant’s motion to dismiss.

            IT IS THEREFORE ORDERED that the judgment and sentence is affirmed.

            ORDERED at Clearwater, Florida this _____ day of December, 2007.

 

 

                                                                        ______________________________

                                                                                          Linda R. Allan

                                                                                       Circuit Court Judge

 

 

                                                                        _______________________________

                                                                                          R. Timothy Peters 

                                                                                         Circuit Court Judge

 

 

                                                                        ________________________________

                                                                                           John A. Schaefer

                                                                                          Circuit Court Judge

cc:        Hans M. Grieble, Esquire

            Office of the State Attorney

            Honorable John D. Carballo