State v. Soles, s. 94-02593

• Decision Date: 07 June 1995
• Docket Number: 94-02615,Nos. 94-02593,s. 94-02593
• Citation: 661 So.2d 62
• Parties: 20 Fla. L. Weekly D1379 STATE of Florida, Appellant/Cross-Appellee, v. Michael Ray SOLES, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 62

661 So.2d 62

20 Fla. L. Weekly D1379

STATE of Florida, Appellant/Cross-Appellee, v. Michael Ray SOLES, Appellee/Cross-Appellant.

Nos. 94-02593, 94-02615.

District Court of Appeal of Florida,

Second District.

June 7, 1995.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Erica M. Raffel, Asst. Atty. Gen., Tampa, for appellant/cross-appellee.

James Marion Moorman, Public Defender, and John C. Fisher, Asst. Public Defender, Bartow, for appellee/cross-appellant.

FRANK, Chief Judge.

The state has appealed from an order dismissing the information entered following the denial of the state's request for a continuance. The state sought the continuance to allow it to arrange for the victim to return from Minnesota to testify at trial. The state's request came on the date trial was scheduled to begin. At that point, Soles had already received four continuances and had waived speedy trial. In an effort to move the case along, the trial judge asked the state to commence prosecution with the available evidence, but the state pressed to have the case set later in the month, still within the speedy trial time. The assistant state attorney would not go forward to trial and the trial court granted Soles' oral motion to dismiss. The trial court erred.

The record reveals no conduct engaged in by the state to abandon the prosecution, no willful or deliberate tactics designed to delay the proceeding and no prejudice to Soles by granting a continuance. A few days would not have violated the defendant's entitlement to a speedy trial. "Dismissal is a very harsh remedy to impose upon the State and is reserved for those instances where no viable alternative exists." State v. Fortesa-Ruiz 559 So.2d 1180 (Fla. 3d DCA) (Gersten, J., dissenting), rev. denied, 559 So.2d 1180 (Fla.1990). See also State v. Hamilton, 387 So.2d 555 (Fla. 2d DCA 1980) (holding that the trial court should have denied the state's motion for continuance, and if the state failed to prove its case because of the unavailability of a witness, a directed verdict should have been entered). As in Hamilton, the trial court had alternatives to dismissal, such as denying the motion for continuance and requiring the state to proceed. The state could have then gone to trial with its available evidence or terminated the prosecution, retaining the right to refile after securing the witness. See State v. Ottrock, 573 So.2d 169 (Fla. 4th DCA 1991).

After the trial court entered its written order of dismissal the state filed a motion to extend speedy trial pending appeal. On the following day the state filed its notice of appeal from the order of dismissal. The trial court then held a hearing on the speedy trial motion and granted the state's motion to extend speedy trial time for ninety days. Soles then filed a notice of cross appeal, claiming that the court was without jurisdiction to enter the speedy trial...