THE STATE OF FLORIDA, APPELLANT,
v.
ALEJANDER PEREZ, APPELLEE
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The State of Florida appealed a trial court's dismissal of a trafficking in stolen property charge against Alejandro Perez for lack of prosecution. The appellate court reversed, holding that the state's announcement of readiness for trial and the mere absence of police officers from the courtroom before jury selection did not constitute lack of prosecution or justify dismissal as a sanction.
The appellate court held that the state's announcement of readiness for trial constitutes a presumption of preparedness to proceed, and the absence of witnesses from the courtroom before jury selection does not demonstrate lack of prosecution. Additionally, any dismissal as a sanction for violating the court's pre-trial order was an abuse of discretion because the trial court lacked authority to order witness presence in advance of trial for the purpose of familiarizing itself with the facts.
[1] A trial court abuses its discretion by dismissing an information for lack of prosecution when the state has announced ready for trial and there is no showing that the sta…
[2] A trial court lacks the authority to order the presence of police officers in advance of a jury trial solely to familiarize itself with the facts of the case.
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Join FLexlaw to unlock all legal intelligence“there is no showing on this record that the state was not prepared to go forward with its case on the day of trial. The state had announced ready for trial and thus presumptively was prepared to select a jury, make an opening statement, and present its witnesses.”
Establishes that announcement of readiness creates a presumption of preparation that is not rebutted by mere physical absence of witnesses before jury selection
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Join FLexlaw to unlock all legal intelligenceThe state charged Perez with trafficking in stolen property involving two undercover police officers who allegedly sold stolen avocados to the defenda…
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PER CURIAM.
This is an appeal by the state from a trial court order dismissing an information for lack of prosecution. For the reasons which follow, we reverse.
Both sides announced ready for trial below on an information charging the defendant Alexander Perez with trafficking in stolen property; this announcement was made on the morning of the day the case was set for trial.
The trial court then asked the prosecuting attorney what the nature of the state’s evidence was. The prosecuting attorney replied that the case involved two undercover police officers who allegedly sold a box of avocados to the defendant upon a representation that the avocados were stolen.
The trial court expressed some concerns about the merit of the state’s case and ordered the prosecuting attorney to produce the police officers in court that afternoon at 2:00 P.M. when the trial was scheduled to begin or the case would be dismissed. Although not entirely clear from the record, the trial court apparently wished to take testimony from these officers in advance of the jury trial to determine whether the state had a meritorious case. When the officers failed to appear in court as ordered, the trial court dismissed the information for lack of prosecution, although the prosecuting attorney represented that one of the officers had been present in court earlier.
We reverse the order under review because, simply stated, there is no showing on this record that the state was not prepared to go forward with its case on the day of trial. The state had announced ready for trial and thus presumptively was prepared to select a jury, make an opening statement, and present its witnesses. The fact that the police officers were not physically in the courtroom at 2:00 P.M. before a jury had even been selected constitutes no showing that the state was not prepared to present its evidence at trial at the appropriate time once the trial had begun.
Moreover, to the extent that the dismissal may be seen as a sanction for the state’s failure to obey a court order, we think the trial court abused its discretion in imposing such a sanction because the trial court had no authority in the first instance to order the police officer’s presence in advance of trial when the sole purpose for doing so appears to have been to familiarize the trial court with the facts of the case, rather than to rule on any pending motion or other legal matter before the court. Compare State v. Carda, 495 So. 2d 912, 914 (Fla. 3d DCA 1986) (error to grant a dismissal for the state’s inability or unwillingness to produce police officers for questioning under oath as “state is not obliged, on pain of dismissal, to produce witnesses for deposition or trial”); State v. Valdes, 443 So. 2d 302 (Fla. 3d DCA 1983) (error to dismiss as sanction for state’s failure to produce witnesses for deposition because (a) it was not state’s responsibility to produce state witnesses for deposition, and (b) to dismiss for failure of state to do so constituted a departure from essential requirements of law); State v. Adderly, 411 So. 2d 981, 982 (Fla. 3d DCA 1982) (error to dismiss for police officer’s failure to appear for deposition as “state is not obliged, at pain of dismissal, to produce witnesses for deposition”).
The order under review is therefore reversed, and the cause is remanded to the trial court with directions to reinstate the information filed below.
Reversed and remanded.
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Gonzalez v. State, 579 So. 2d 145 (Fla. 3d DCA 1991)…PER CURIAM. Appellant, Pedro Gonzalez, appeals the denial of his motion for post conviction relief. We affirm. On plenary appeal, this court affirmed appellant’s conviction for first degree mur [*146] der. Gonzalez v. State, 543 So. 2d 386 (Fla. 3d DCA 1989). Appellant then sought post conviction relief based on a claim of ineffective assistance of counsel. Appellant claimed that his attorney improperly admitted collateral evidence which prejudiced him. At the hearing on the motion,…
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State v. Earl, 545 So. 2d 415 (Fla. 3d DCA 1989)…he Criminal Justice System. The problem arises, however, when the taking of such actions by the Court invades and interferes with the proper exercise of prosecutorial discretion that is the sole responsibility of the prosecutor. See State v. Perez, 543 So. 2d 386 (Fla. 3d DCA 1989). The strength of the State’s case, and the likelihood of the State obtaining a conviction after a prosecution of a particular case, are properly considered by the Court in certain circumstances, such as when the Court has to make…
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Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)…93 (Fla. 3d DCA 1989); State v. Finney, 550 So. 2d 1141 (Fla. 3d DCA 1989); Joseph v. State, 547 So. 2d 249 (Fla. 3d DCA 1989); Jones v. State, 546 So. 2d 126 (Fla. 3d DCA 1989); Holsey v. State, 544 So. 2d 342 (Fla. 3d DCA 1989); Gonzalez v. State, 543 So. 2d 386 (Fla. 2d DCA 1989); Morales v. State, 541 So. 2d 1289 (Fla. 3d DCA 1989); Anderson v. State, 541 So. 2d 797 (Fla. 3d DCA 1989); Mozqueda v. State, 541 So. 2d 777 (Fla. 3d DCA 1989); Ahlberg v. State, 541 So. 2d 775 (Fla. 3d DCA 1989); Dowding v. Sta…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Zeb Adderly, 411 So. 2d 981 (Fla. 3d DCA 1982)
- State v. Valdes, 443 So. 2d 302 (Fla. 3d DCA 1983)
- Gen. Ins. Co. v. Vladimiro Ramanovski, Sr., 443 So. 2d 302 (Fla. 3d DCA 1983)
- ALL Clean Bldg. Maint., Inc. v. Strachan, 495 So. 2d 912 (Fla. 3d DCA 1986)