State v. Anderson
| Decision Date | 30 March 1976 |
| Docket Number | No. 75--1043,75--1043 |
| Citation | 329 So.2d 424 |
| Court | Florida District Court of Appeals |
| Parties | The STATE of Florida, Appellant, v. Daniel ANDERSON, Appellee. |
Richard E. Gerstein, States Atty., and John Lipinski, Asst. States Atty., for appellant.
Phillip A. Hubbart, Public Defender, and Bennett A. Brummer, Asst. Public Defender, for appellee.
Before BARKDULL, C.J., and HENDRY and HAVERFIELD, JJ.
Appellant, the prosecution below, brings this appeal from an order of the trial court dismissing appellee as a defendant in a crininal case for appellant's failure to disclose the name of a confidential informant.
On September 23, 1974, an information was filed charging appellee with numerous narcotics offenses. Subsequently, appellee filed an unsworn motion to compel the disclosure of the identity of a confidential informant. After a hearing on the motion, the trial court entered an order dated May 2, 1975, requiring the disclosure. On May 28, 1975, appellant stated to the trial court that it would not abide by the order for disclosure; and, on the same day, the trial court on its own motion dismissed the case as to appellee. From the order of dismissal, appellant brings this appeal.
Appellant contends that the trial court erred in entering the order because, basically, (1) appellee did not properly carry the burden of proof or set forth allegations sufficiently to warrant a dismissal for appellant's failure to disclose the identity of the confidential informant, and (2) the trial court denied it the opportunity to contest the unsupported allegations of appellee which resulted in the trial court's order.
Appellee contends, among other things, that the trial court's order came to this court on appeal clothed with a presumption of correctness and the record on appeal supports the trial court's order. See, e.g., Rodriquez v. State, Fla.App.1966, 189 So.2d 656; and Savage v. State, Fla.App.1963, 156 So.2d 566.
The general rule in respect to the identity of a confidential informant is that the state has a privilege of nondisclosure, and the burden is on a defendant claiming an exception to the rule to show why disclosure should be compelled. See State v. Davis, Fla.App.1975, 308 So.2d 539; and Rule 3.220(c) (2), Florida Rules of Criminal Procedure, 33 F.S.A. Among the factors which might require disclosure are whether a defendant's identity is in issue and whether the informant was an active participant in the offense charged against a defendant. See Monserrate v. State, Fla.App.1970, 232 So.2d 444; and Spataro v. State, Fla.App.1965, 179 So.2d 873.
In the instant appeal, the order of the trial court requiring disclosure, upon which the trial court based its order of dismissal reads in pertinent part as follows:
'This cause having come on to be heard on the defendant's Motion to Compel Identity of Confidential Informant and the Court being fully advised that:
'It is hereby
'CONSIDERED, ORDERED AND ADJUDGED, pursuant to the authority of English v. State, 301 So.2d 813 (Fla.2nd dist. 1974), that the State of Floida produce the name and last known residence and business address of the confidential informant.
'DONE AND ORDERED this 2 day of May, 1975, nunc pro tunc to the 18th day of April, 1975.'
It is apparent from this order that the trial court based its decision on judicial proceedings not only shown within the record on...
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