State v. Wilson

498 So. 2d 1053, 12 Fla. L. Weekly 127

• Court: District Court of Appeal of Florida
• Decided: December 17, 1986
• Docket: 4-86-0616
• Status: Published

Opinion

498 So.2d 1053 (1986)

STATE of Florida, Appellant,
v.
Sabrina WILSON, Appellee.

No. 4-86-0616.

District Court of Appeal of Florida, Fourth District.

December 17, 1986.

Jim Smith, Atty. Gen., Tallahassee, and Amy Lynn Diem, Asst. Atty. Gen., West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellee.

PER CURIAM.

The state appeals from an order of dismissal for lack of prosecution. The state charged appellee with grand theft. The alleged crime was committed on December 10, 1985. The state announced ready for trial on Friday, February 28, 1986 and the trial court called the case for trial on Tuesday, March 4, 1986. The state appeared and informed the court that it was not ready because the victim had moved over the weekend and could not be located. The trial court, over the state's objection, granted appellee's motion for a dismissal on grounds of lack of prosecution.

We reverse on the authority of State v. Evans, 418 So.2d 459 (Fla. 4th DCA 1982). In Evans, we said:

[W]e are compelled to hold that dismissal was precipitous and unwarranted. The trial court could have forced the state to trial simply by denying the motion for continuance. The state would have had the option to nol-pros or it could have attempted to make its case without the unavailable witness. In any event, dismissal was unwarranted.

Id. at 460.

Appellee has not shown any prejudice that would have occurred had the trial court pursued any of the viable alternatives to dismissal; nor does the record demonstrate that the state's failure to proceed at the appointed time was willful or deliberate. We reverse the order of dismissal and remand this case for further proceedings.

REVERSED and REMANDED.

DELL, WALDEN and STONE, JJ., concur.