County Criminal Court: APPELLATE PROCEDURE – Preservation of Error – While trial court abused its discretion by sua sponte dismissing case after State asked for a continuance, State failed to raise an objection. Order of dismissal affirmed. Hamilton-Lefkowitz v. State, No. CRC0806355CFAWS, (Fla. 6th Cir.App.Ct. February 4, 2010).

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 PASCO COUNTY

APPELLATE DIVISION

STATE OF FLORIDA,

Appellant,

UCN: 512008CF006355A000WS

v. Case No: 08-6355-CFAWS

Lower No: CTC05-06084MMAWS-16

DANA HAMILTON-LEFKOWITZ,

Appellee.

________________________/

Appeal from Pasco County Court

County Judge David Seth Walker

Bryan Sarabia, A.S.A.

for Appellant

Luke Lirot, Esq.

for Appellee

ORDER AND OPINION

The State appeals a County Court’s order dismissing Appellee’s charge of Solicitation for Sale of Alcoholic Beverages. Although the trial court abused its discretion in sua sponte dismissing the charge, the issue was not properly preserved for appellate review. This Court affirms the trial court’s order as set forth below.

On August 29, 2005, Appellee was charged with one count of Solicitation for Sale of Alcoholic Beverages, contrary to Florida Statutes Section 562.131. After extensive litigation, the case was scheduled for trial for the first time on September 24, 2008, wherein a jury was selected, but not sworn. That day, the State moved for a continuance, arguing that it still needed a critical piece of evidence that was easily obtainable but absolutely necessary for its case. This was the State’s first request for a continuance.

Appellant’s counsel strongly objected to the continuance. The defense planned on arguing in its motion for judgment of acquittal that the State did prove an element of the offense that was directly related to the missing evidence. The defense argued that the State admitted the evidence was easily obtainable. The defense added that the case was three years old.

After hearing argument on the motion to continue, the trial court denied the motion and sua sponte dismissed the case. The trial court did not hear arguments regarding the dismissal and made no findings of prejudice to the Appellee. In response, the State simply inquired whether the court would be issuing a written order.

On appeal, Appellant argues that the trial court abused its discretion by dismissing the case sua sponte. After denying the State’s continuance, the trial court should have called the case for trial, inquired how the State wished to proceed, and given the defendant an opportunity to request a dismissal of the charge. Hinton v. State, No. CRC 05-77-APANO, (Fla. 6th Cir. App. Ct. May 11, 2006), at FN1. If the defendant did not seek dismissal, then the trial court could have asked the State to demonstrate why dismissal was not appropriate. Id. By dismissing the case, the trial court granted relief Appellee did not request and precluded the State from seeking available alternatives.

The trial court had broad discretion in denying the State’s motion for continuance; however, it abused its discretion when it sua sponte dismissed the case. Dismissal of a criminal charge is an extreme measure reserved only for when no other practical alternative exists to remedy the prejudice to the defendant. State v. Colón, 909 So. 2d 536 (Fla. 2d DCA 2005). Dismissal should not be used to punish prosecutorial misconduct. State v. L.J.T., 921 So. 2d 746, 747 (Fla. 5th DCA 2006). Dismissing the charge without a showing of prejudice to Appellee only punished the public, instead of the prosecutor. See, Id. at 748. Therefore, regardless of the merits of the State’s motion to continue, the trial court should not have sua sponte dismissed the case.

While this Court agrees that the trial court abused its discretion in dismissing the case, the State failed to preserve the issue for appellate review. The State never objected to the dismissal, allowing the trial court an opportunity to remedy its ruling. Merely asking whether a written order would be issued does not constitute presenting a specific legal argument or ground. Kelley v. State, 974 So. 2d 1047, 1051 (Fla. 2007). This issue cannot be presented for the first time on appeal and is procedurally barred. Therefore, it is

ORDERED AND ADJUDGED that the trial court’s order dismissing Appellee’s charge is AFFIRMED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ______ day of January 2010.

Original order entered on December 14, 2009 by Circuit Judges W. Lowell Bray, Jr., Daniel D. Diskey, and Stanley R. Mills.