County Criminal Court: CRIMINAL PROCEDURE – Continuance – Trial judge’s sua sponte dismissal of charges was error because the court failed to follow the correct procedure in dismissing the charges or ruling on the State’s motion to continue. Order dismissing case reversed. State v. Hinds, No. CRC 07-9 APANO, (Fla. 6th Cir. App. Ct. Feb. 27, 2008).

 

 

            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,                                                         Appeal No. CRC 07-9 APANO

v.                                                                                 UCN522007AP000009XXXXCR

 

ELTON HINDS

 

            Appellee.

_________________________________/

 

Opinion filed ______________________.

 

Appeal from decision of the

Pinellas County Court

County Judge John Carassas

 

C. Marie King, Esquire

Assistant State Attorney

ORDER AND OPINION

            (J. Bulone)

 

            THIS MATTER is before the Court on the State’s appeal from an order entered by the Pinellas County Court dismissing the charge against the defendant. After reviewing the briefs and record, this Court reverses the order because the trial court failed to follow the proper procedure when it dismissed the charge.

            On the day of the trial, the State requested a continuance because the arresting officer failed to appear for trial, although he was served and confirmed to appear. It seems he had quit the police force one week prior to the trial. The State requested the continuance so that it could “have an opportunity to have him come in.” TR. 4.

            Instead of directly addressing the motion for continuance, the trial judge asked the State if it was going to nolle prosequi the case. The State said no. The trial judge then said the trial is ready to go and asked the State if it was ready to proceed. When the State said no, the trial judge sua sponte dismissed the charges.

            The State claims this sua sponte dismissal of the charge was error. We agree. The trial court failed to follow the correct procedure. See e.g., State v. Madormo, No. CRC 05-47 APANO (Fla. 6th Cir. App. Ct. June 13, 2006); State v. Rucker, No. CRC 05- 80 APANO (Fla. 6th Cir. App. Ct. May 11, 2006).     

            In addition, the record reveals that before implicitly denying the State’s motion for continuance the trial court failed to consider the appropriate factors. See Jenkins v. State, 872 So.2d 388 (Fla. 4th DCA 2004) (prior due diligence to obtain witnesses’ presence; substantially favorable testimony; witnesses were available and willing to testify; and denial of the continuance caused material prejudice).

            IT IS THEREFORE ORDERED that the order of dismissal is reversed, and this matter is remanded to the trial court for further action.

            DONE AND ORDERED in Clearwater, Pinellas County, Florida this ____ day of February, 2008.

 

____________________________                            _____________________________

               Joseph A. Bulone                                                      David A. Demers

              Circuit Judge                                                              Circuit Judge                                                                                       

                                                _________________________

                                                            Cynthia J. Newton

                                                            Circuit Judge

cc:   Officer of the State Attorney

        Elton Hinds

        Honorable Judge Carassas