State v. A.J.

255 So. 3d 891
District Court of Appeal of Florida·Decided February 14, 2018·No. Case No. 2D15–2718·Published

Opinion

CRENSHAW, Judge.

The State appeals the dismissal of a marijuana possession charge against A.J. The trial court dismissed the charge-over the State's repeated objections-after A.J. had orally moved for dismissal on the basis that she had returned six consecutive negative drug screens as the court had ordered. Because the dismissal was error, we must reverse.

The State charged A.J. with one count of possessing less than twenty grams of a controlled substance-marijuana-after a school official found a "marijuana blunt" in A.J.'s makeup bag during a search. At a status conference on April 30, 2015, the court offered to dismiss the charges if A.J. satisfied her case manager's drug treatment program at the end of three months, after the case manager had reported that *893A.J. had returned four consecutive negative drug screens between February 26 and April 25. In response to concerns from defense counsel about objections the State may have to this offer, the court stated that "I don't care whether they do or do not.... It's not their call."

At the next status conference on May 28, 2015, A.J. moved for dismissal of the charges, arguing that "she had six consecutive negative drug screens and that was the offer made to her by the court, not only on the date of arraignment, but [also at] her last status conference." The State argued that "there's no basis for the [c]ourt to dismiss. There's no motions. It's not a trial. It's not within the [c]ourt's purview ... for the [c]ourt to just outright dismiss." However, the court granted A.J.'s oral motion.

The State's discretion to prosecute is "absolute," Barnett v. Antonacci, 122 So.3d 400, 405 (Fla. 4th DCA 2013) (quoting State v. Cain, 381 So.2d 1361, 1367 (Fla. 1980) ), and "inviolate," State v. Greaux, 977 So.2d 614, 615 (Fla. 4th DCA 2008) (citing State v. Wheeler, 745 So.2d 1094, 1096 (Fla. 4th DCA 1999) ). "[I]n the absence of [a] statute or motion to dismiss, the decision whether to prosecute or to dismiss charges is a determination to be made by solely the State." State v. Brosky, 79 So.3d 134, 135 (Fla. 3d DCA 2012). This discretion trumps the court's belief regarding whether the interests of the public and the parties are best served by a dismissal. Id. (first citing State v. Cleveland, 390 So.2d 364, 367 (Fla. 4th DCA 1980), approved, 417 So.2d 653 (Fla. 1982) ; and then citing Wheeler, 745 So.2d at 1096 ). Additionally, Florida Rule of Criminal Procedure 3.190(a) requires that a motion to dismiss "be in writing and signed by the party making the motion or the attorney for the party," and "[t]his court has repeatedly held that it is improper for a trial court to dismiss charges when the defendant has not filed a written motion to dismiss." State v. Suazo, 973 So.2d 1273, 1274 (Fla. 2d DCA 2008) (citing cases).

Here, A.J.'s motion was not in writing, but made orally at the status conference. In addition, no "good cause" was shown by A.J. so as to permit the court to waive the requirement that the motion be in a signed writing. See Fla. R. Crim. P. 3.190(a). The court therefore erred in granting A.J.'s oral motion to dismiss. See Suazo, 973 So.2d at 1274 ; State v. Reedy, 862 So.2d 941, 942 (Fla. 2d DCA 2004) (holding that the trial court erred in dismissing grand theft charges where motion to dismiss was not in writing and the State did not have time to prepare its response).

Moreover, the State repeatedly argued-to no avail-that there was no authority for the court to enter a dismissal. It is apparent from the transcripts of the status conferences that the court "fashioned" this form of "sanction" because it did not consider juvenile drug court-which the State had offered-as suitable for A.J.'s needs and circumstances, considering that A.J. would have to be removed from school three times per week to attend and that there would be transportation issues getting her to and from drug court. In fact, at the first status conference, the trial court remarked that the juvenile drug court program had a "one size fits all approach" and stated that "I will do what I think is best for this child because she is my child and in my care." The court's dismissal constituted an improper infringement upon the State's discretion to prosecute. See Wheeler, 745 So.2d at 1096.

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State v. A.J., 255 So. 3d 891 (Fla. Ct. App. 2018).

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Related

State v. Greaux
977 So. 2d 614 (District Court of Appeal of Florida, 2008)
State v. Pope
674 So. 2d 901 (District Court of Appeal of Florida, 1996)
State v. Wheeler
745 So. 2d 1094 (District Court of Appeal of Florida, 1999)
Cleveland v. State
417 So. 2d 653 (Supreme Court of Florida, 1982)
State v. Alexander
831 So. 2d 1252 (District Court of Appeal of Florida, 2002)
State v. Cleveland
390 So. 2d 364 (District Court of Appeal of Florida, 1980)
State v. Cain
381 So. 2d 1361 (Supreme Court of Florida, 1980)
State v. Reedy
862 So. 2d 941 (District Court of Appeal of Florida, 2004)
State v. BROSKY
79 So. 3d 134 (District Court of Appeal of Florida, 2012)
Barnett v. Antonacci
122 So. 3d 400 (District Court of Appeal of Florida, 2013)
State v. Franklin
901 So. 2d 394 (District Court of Appeal of Florida, 2005)
State v. Plate
929 So. 2d 617 (District Court of Appeal of Florida, 2006)
State v. Suazo
973 So. 2d 1273 (District Court of Appeal of Florida, 2008)