State v. Alvarez
| Decision Date | 15 February 1972 |
| Docket Number | Nos. 71--464--71--468,s. 71--464--71--468 |
| Citation | 258 So.2d 24 |
| Parties | The STATE of Florida, Appellant, v. Oscar ALVAREZ et al., Appellees. The STATE of Florida, Appellant, v. Anthony Joseph DELANO et al., Appellees. The STATE of Florida, Appellant, v. Dave MARCUS, Appellee. The STATE of Florida, Appellant, v. Dave MARCUS and Richard Riggins, Appellees. |
| Court | Florida District Court of Appeals |
Robert L. Shevin, Atty. Gen., and Arnold R. Ginsberg, Asst. Atty. Gen., for appellant.
Walter Gwinn and Jerry Mosca, Miami, for appellees.
Before PEARSON, CHARLES CARROLL and HENDRY, JJ.
The State is the appellant in each of these appeals. In each case it is appealing an order of the trial court declaring that the prosecution of the cause had been abandoned by the State and thereupon dismissing the information filed. All of these informations were filed as the result of the grand jury testimony of a former police officer named Charles Celona. Presumably because of the public corruption alleged, the Governor of the State of Florida assigned officers from circuits outside of the eleventh judicial circuit to prosecute the charges growing out of the Celona investigation. These informations were dismissed by the presiding judge on April 2, 1971.
The threshold question is whether a trial judge in a criminal prosecution before him has the power to declare a prosecution abandoned when the prosecuting officer urges that the prosecution should be continued. The State does not make this question a point on appeal but urges rather that the order of the trial judge was based upon a mistaken application of the statute pertaining to the assignment of state's attorneys. 1 In the alternative it is argued that the trial judge's order is erroneous because the record does not support a finding that the prosecution of the cases was abandoned. We think that a determination of the trial judge's right to take the action that he did is necessary to a consideration of the case.
The appellees have cited State v. O'Neal, Fla.App.1965, 174 So.2d 564, to support the conclusion that a trial judge in a criminal prosecution has an inherent power to declare that the prosecution has failed to go forward with a cause and therefore can dismiss the information. In that case, the appellate court affirmed an order which stated that the State had abandoned or discontinued the prosecution of certain informations, but the affirmance was upon the stated ground that the appellate court was not furnished with a record of the proceedings in the trial court. The court stated: 'In the absence of all the record that was adduced below, we must accept the circuit judge's statement.' We conclude that a trial judge in a criminal prosecution does have inherent power to make a finding that an abandonment of a criminal prosecution does exist. But this finding of fact, like all other findings of fact, must be supported by the record. See discussion at 21 Am.Jur.2d Criminal Law § 517. City of Wichita v. Catino, 175 Kan. 657, 265 P.2d 849 (1954), City of Wichita v. Houchens, 184 Kan. 297, 335 P.2d 1117 (1959).
The State argues with considerable logic that the trial judge erred in his conclusion that the authority of the specially appointed state's attorneys from other circuits had expired. It has often been...
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State v. Fortesa-Ruiz
...declare the prosecution of a case abandoned. However, such a finding of abandonment must be supported by the record. State v. Alvarez, 258 So.2d 24 (Fla. 3d DCA 1972). In those cases where an information has been dismissed for lack of prosecution, the inquiry on appeal has been on the willf......
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...v. Ford Motor Credit Company, 226 So.2d 403 (Fla.1st D.C.A. 1969); Hale v. State, 238 So.2d 471 (Fla.1st D.C.A. 1970); State v. Alvarez, 258 So.2d 24 (Fla.3rd D.C.A. 1972); Breedlove v. State, 295 So.2d 654 (Fla.3rd D.C.A. 1974); Mitchell v. State, 321 So.2d 108 (Fla.1st D.C.A. 1975); Sykes......
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