State v. Fattorusso
| Decision Date | 02 December 1969 |
| Docket Number | No. 68-475,68-475 |
| Citation | 228 So.2d 630 |
| Parties | The STATE of Florida, Appellant, v. Doris Cook FATTORUSSO, Appellee. |
| Court | Florida District Court of Appeals |
Earl Faircloth, Atty. Gen., and Arden M. Siegendorf, Asst. Atty. Gen., Richard E. Gerstein, State's Atty., and Charles D. Edelstein, Asst. State's Atty., for appellant.
Irwin J. Block and Barry N. Semet, Miami, for appellee.
Before PEARSON, C. J., and BARKDULL and SWANN, JJ.
The defendant below, Doris Cook Fattorusso, was charged by information with the crime of performing an abortion. She filed a motion to quash. The trial court treated it as a motion to dismiss and on March 14, 1968 orally dismissed the information with leave for the state to refile within twenty (20) days. The oral grounds stated for the dismissal of the information were that it contained the word 'shot * * * the term shot is slang * * * means nothing * * * is not good in an information * * * proper term is a hypodermic injection.'
The state failed to refile an information against this defendant within the twenty days and on April 22, 1968 the trial court entered its written order dismissing 'the information with prejudice.'
The state filed a motion to vacate the written order of dismissal with prejudice alleging, inter alia, that such order was not requested by the defendant; that the state was not given notice or heard prior to the entry of the order of dismissal with prejudice; and that the state's failure to refile the information was due to excusable neglect based upon misinterpretation of the court's action. A hearing was held on the motion to vacate and it was denied. The state has appealed from the written order dismissing the information with prejudice and argues that the trial court committed reversible error in dismissing 'the information with prejudice' and in orally dismissing the information originally on the ground that the word 'shot' was used therein.
It is conceded that the statute of limitation has not expired on this charge and it appears that no objections were raised, or argued as to the timeliness of any of the proceedings below.
The state argues that the written order 'dismissing the information with prejudice' should be reversed because its failure to refile an information within the time limit set in the oral order of dismissal did not result in loss of its authority or power to prosecute the defendant for this alleged offense. It cites, as authority, Wilk v. State, Fla.App.1969, 217 So.2d 610. It states in part:
The defendant argues that the written order 'dismissing the information with prejudice' should be affirmed because a trial court is vested with inherent authority to control its docket and proceedings and, in addition, this matter is governed by the holding in Balikes v. Speleos, Fla.App.1965, 173 So.2d 735.
In Speleos a defendant was charged with certain offenses in the Metropolitan Court of Dade County, Florida and was kept in jail for ten days because he was unable to post bond after pleading not guilty. He was represented by the Public Defender who was unable to defend the case on the scheduled trial date and the Metropolitan Judge entered an order and judgment releasing the defendant forthwith and...
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State v. Braunsdorf
...996, 998 (1966). The defendant also cites two Florida cases, State v. Romano, 300 So.2d 22 (Fla.App.1974), and State v. Fattorusso, 228 So.2d 630 (Fla.App.1969). In Fattorusso the court of appeals reversed a trial court's dismissal of an information with prejudice, but in the course of its ......
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State v. Abbati
...law. See State v. Sherrod, 383 So.2d 752, 753 (Fla.App.1980). But see State v. Romano, 300 So.2d 22 (Fla.App.1974); State v. Fattorusso, 228 So.2d 630 (Fla.App.1969) (both recognizing inherent right of trial court to dismiss an action because of non-compliance with its orders in the interes......
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State v. Simmons
...of its orders if such misconduct prejudices the defendant and lesser sanctions will not remedy the harm. State v. Fattorusso, 228 So.2d 630, 632-33 (Fla. Dist. Ct. App. 1969) (acknowledging that court has inherent power to dismiss with prejudice for deliberate, continuous or flagrant violat......
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Jenkins v. Webb
...disregard of the [commission's] authority." Swindle v. Reid, 242 So.2d 751, 753 (Fla.Dist.Ct.App.1971) (citing State v. Fattorusso, 228 So.2d 630, 633 (Fla.Dist.Ct.App.1969)). Under Rules 1.12 and 2.2, we hold the commission's sua sponte exercise of its authority to dismiss the claim withou......