City of Miami Beach v. Adalberto Cosme

• Court: District Court of Appeal of Florida
• Decided: February 7, 2024
• Docket: 2022-1404
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 7, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1404 Lower Tribunal No. B22-14816 ________________

City of Miami Beach, Appellant,

vs.

Adalberto Cosme, Appellee.

An Appeal from the County Court for Miami-Dade County, Robin Faber, Judge.

Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General; Rafael A. Paz, City Attorney, and Robert F. Rosenwald, Jr., Chief Deputy City Attorney, and Woody Clermont, Assistant City Attorney, for appellant.

Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellee.

Before SCALES, LINDSEY, and MILLER, JJ.

LINDSEY, J. The City of Miami Beach appeals the trial court’s sua sponte dismissal

of the charges against Adalberto Cosme. For the reasons set forth below,

we reverse.

On the afternoon of July 27, 2022, two City of Miami Beach police

officers observed Appellee Adalberto Cosme (Defendant below) with an

open alcoholic beverage in plain view of the public. Cosme smelled heavily

of alcohol and slurred his speech. The officers arrested Cosme and

transported him to jail.

Cosme was charged by arrest affidavit with consumption and

possession of an open container of alcohol in a public place in violation of

section 70-87(a)(1), Miami Beach Code of Ordinances. The Municipal

Prosecutor was present at the first appearance on the morning of July 28,

2022.1 Cosme did not appear. The Department of Corrections advised the

court that Cosme was in medical isolation. At the Assistant Public

Defender’s request, the case was reset for the following day.

But instead, the case was recalled during the afternoon first

appearance calendar on the same day (July 28). The City was not noticed

to appear in the afternoon. Hence, the Municipal Prosecutor was not

1 Municipal prosecutors are authorized to prosecute violations of municipal ordinances. See § 34.13(5), Fla. Stat. (2023) (“Municipal prosecutors may prosecute violations of municipal ordinances.”).

2 present. Despite having been given information about Cosme’s lack of prior

record and the Municipal Prosecutor’s agreement to allow Cosme to be

released on his own recognizance, the county court sua sponte dismissed

the case by way of a handwritten note on the back of the arrest affidavit.

The City filed a Notice of Appeal in the lower court directed at the

dismissal. The Notice stated that the dismissal was “contrary to those

requirements set forth pursuant to Florida Law.” The Attorney General’s

Office, on behalf of the City, later filed a motion in this Court requesting

additional time to obtain a written order of dismissal.2 This Court granted the

City’s motion, and the City supplemented the record with a written order

dismissing the case.3

The City argues that because the prosecutor has the sole discretion to

charge and prosecute criminal acts, the trial court erred in sua sponte

dismissing the case. Cosme does not dispute the City’s argument but

2 Opposing counsel took the position that the order on appeal was a sufficient written order dismissing the case. Opposing counsel also moved to dismiss arguing that the City had no authority to invoke this Court’s jurisdiction. However, this argument was rendered moot by the appearance of the Attorney General’s Office, as conceded by the Attorney General in her written response to the motion to dismiss. Consequently, this Court entered an order denying the motion to dismiss. 3 See Fla. R. App. P. 9.110(l) (“[I]f a notice of appeal is filed before rendition of a final order, the appeal shall be subject to dismissal as premature. . . . Before dismissal, the court in its discretion may grant the parties additional time to obtain a final order from the lower tribunal.”).

3 instead argues that the City failed to properly preserve its argument and

invited error.

While it is true that “[i]n general, to raise a claimed error on appeal, a

litigant must object at trial when the alleged error occurs[,]” F.B. v. State, 852

So. 2d 226, 229 (Fla. 2003), it is well-established that a due process

violation, like the one here, is reviewable on appeal. See, e.g., State v.

Johnson, 616 So. 2d 1, 3 (Fla. 1993) (“[F]or an error to be so fundamental

that it can be raised for the first time on appeal, the error must be basic to

the judicial decision under review and equivalent to a denial of due

process.”); see also Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306,

314 (1950) (“The fundamental requisite of due process of law is the

opportunity to be heard.” (quoting Grannis v. Ordean, 234 U.S. 385, 394

(1914)).

Here, the City was not given notice and was therefore not present when

the lower court sua sponte dismissed the case.4 “‘Due process protections

prevent a trial court from deciding matters not noticed for hearing and not the

subject of appropriate pleadings.’ Thus, it is error to award relief that is

4 The dissent contends that this case is on all fours with State v. C.W., 166 So. 3d 950 (Fla. 4th DCA 2015). Although C.W. involved a trial court’s improper sua sponte dismissal, the opinion does not address the due process concerns raised in the instant appeal. Nothing in C.W. indicates that the prosecutor was not present when the trial court sua sponte dismissed.

4 neither requested in the motion at issue nor argued at the hearing on that

motion.” Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So. 3d

865, 871 (Fla. 2d DCA 2011) (quoting Mizrahi v. Mizrahi, 867 So. 2d 1211,

1213 (Fla. 3d DCA 2004)); see also State v. Patsas, 60 So. 3d 1152, 1152

(Fla. 5th DCA 2011) (“We reverse the trial court’s sua sponte order

dismissing a 1985 felony charge . . . . The record reflects that the State did

not receive notice or an opportunity to be heard prior to the rendition of the

order of dismissal. The fundamental requisites of due process of law are

notice and the opportunity to be heard.”).

Though most due process criminal cases involving the right to notice

and the denial of the right to be heard implicate a defendant’s constitutional

rights, due process is a two-way street. Because the City’s due process

rights were violated when the trial court sua sponte dismissed without

providing the City with notice and an opportunity to be heard, we reverse the

order on appeal.5

Moreover, because the prosecution has the sole discretion to charge

and prosecute criminal acts, and because no motion to dismiss was filed and

none of the grounds enumerated in Florida Rule of Criminal Procedure

5 We also reject the argument that the City invited error when it requested a written final order from the lower court. This was done pursuant to an order from this Court, which gave the City additional time to obtain a final order.

5 3.190(c) were present in this case, the trial court exceeded its authority in

dismissing the case.6

It is axiomatic that in the absence of a statute or motion to dismiss, the

decision whether to prosecute or to dismiss charges is a determination to be

made solely by the prosecution. See, e.g., State v. Brosky, 79 So. 3d 134,

135 (Fla. 3d DCA 2012); see also State v. Leon, 967 So. 2d 437, 437 (Fla.

4th DCA 2007) (“[W]e agree that reversal is required because the trial court’s

action in dismissing the case was an abuse of discretion and constituted an

improper infringement upon the State’s discretion to prosecute.”); City of

Hollywood v. Haynie, 337 So. 3d 369, 371-72 (Fla. 4th DCA 2022) (holding

that the trial court did not have discretion to sua sponte dismiss a criminal

charge of public consumption of an alcoholic beverage even though the

defendant was being held in custody during the COVID-19 pandemic, where

6 Florida Rule of Criminal Procedure 3.190(c) provides as follows:

[T]he court may at any time entertain a motion to dismiss on any of the following grounds: (1) The defendant is charged with an offense for which the defendant has been pardoned. (2) The defendant is charged with an offense for which the defendant previously has been placed in jeopardy. (3) The defendant is charged with an offense for which the defendant previously has been granted immunity. (4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. The facts on which the motion is based should be alleged specifically and the motion sworn to.

6 the city had determined it would continue to prosecute, and the defendant

had not moved to dismiss the charge). “This discretion is inviolate

‘notwithstanding the court’s belief that the best interests of the public and the

parties would be served by dismissal.’” Brosky, 79 So. 3d at 135 (quoting

State v. Wheeler, 745 So. 2d 1094, 1096 (Fla. 4th DCA 1999)).

Here, Cosme did not move to dismiss, and no administrative order

authorized the trial court to sua sponte dismiss the case. Indeed, the trial

court dismissed the criminal charges outside the presence of the Municipal

Prosecutor who was noticed for this case the following day. Notwithstanding

the trial court’s belief that the best interests of the public and the parties

would be served by dismissal, it lacked authority to do so not only in the

absence of the Municipal Prosecutor but also in the absence of a request to

do so.

We therefore reverse the order of dismissal and remand for further

proceedings.

Reversed and remanded.

SCALES, J., concurs.

7 State of Florida v. Adalberto Cosme

Case No. 3D22-1404

MILLER, J., dissenting.

I respectfully dissent. I agree with the majority in so far as it concludes

that the right by the State to maintain a prosecution is integral to our justice

system and the trial court possesses no authority to interfere with that right,

absent legal justification. But I view the preservation issue slightly differently.

It seems to me that this case is on all fours with the decision of our sister

court in State v. C.W., 166 So. 3d 950 (Fla. 4th DCA 2015), and that by

requesting a written order of dismissal, without voicing any objection

whatsoever to the process employed by the trial court, the municipal

prosecutor invited the asserted error or, at a minimum, failed to preserve the

claim for appellate review. See C.W., 166 So. 3d at 950 (simultaneously

confirming that “in sua sponte dismissing the case, the trial court improperly

ruled on an issue that was not before it and interfered with the State’s

discretion to bring charges against [the defendant],” yet affirming dismissal

“because the State ha[d] not preserved these arguments for appeal”).

Relying upon settled appellate principles, courts around this state have

routinely refused to impute reversible error in analogous circumstances. See

e.g., Thomas v. State, 730 So. 2d 667, 668 (Fla. 1998) (“Where counsel

communicates to the trial judge his acceptance of the procedure employed,

8 the issue will be considered waived.”); Ashley v. State, 642 So. 2d 837, 838

(Fla. 3d DCA 1994) (“[T]he [appellant] can[not] take advantage on appeal of

the situation he created at trial.”); Krasnick v. State, 691 So. 2d 523, 524

(Fla. 4th DCA 1997) (concluding appellate review of issue raised for first time

on appeal has been waived); Bryan v. Bryan, 930 So. 2d 693, 697 (Fla. 3d

DCA 2006) (“[U]nder the invited-error doctrine, a party may not make or invite

error at trial and then take advantage of the error on appeal.”); Weber v.

State, 602 So. 2d 1316, 1319 (Fla. 5th DCA 1992) (asserting appellant may

not “sandbag [a] trial judge by requesting and approving [something] they

know . . . will result in an automatic reversal, if given”); Pensacola Beach

Pier, Inc. v. King, 66 So. 3d 321, 324 (Fla. 1st DCA 2011) (finding appellants

failed to preserve argument for appeal where “trial court's error appeared for

the first time on the face of the final summary judgment” and appellants did

not attempt to correct error with trial court); Anderson v. State, 93 So. 3d

1201, 1206 (Fla. 1st DCA 2012) (noting “[a]ppellant cannot . . . ‘cry foul’ and

benefit from [the] invited error” after waiving issues on appeal with trial court);

Chiu v. Wells Fargo Bank, N.A., 242 So. 3d 461, 463 (Fla. 3d DCA 2018)

(“Generally, in order to raise an issue on appeal, it must be presented to the

trial court, and the ‘specific legal argument or ground to be argued on appeal

must be part of that presentation.’”). Accordingly, and because the factual

9 issues surrounding the purported due process violation are not fully

established by the record before us, I would affirm the order under review.