FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Ralph C.
Jo Bondi, Attorney General, Tallahassee, and Jeffrey H.
Siegal, Assistant Attorney General, Tampa, for Appellant.
L. Dimmig, II, Public Defender, and Clark E. Green, Assistant
Public Defender, Bartow, for Appellee.
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.
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 A.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
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.
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).
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).
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.
Fourth District stated in Wheeler,
"[n]otwithstanding the court's belief that the best
interests of the public and the parties would be served by
dismissal, it is the state attorney who 'must still make
the final determination as to whether prosecution will
continue.' " Id. (quoting
Cleveland, 390 So.2d at 367). In State v.
Plate, 929 So.2d 617, 618 (Fla. 5th DCA 2006), for
instance, the trial court had dismissed a charge of obtaining
a motor vehicle by fraud against Plate, "apparently in
an effort to save Plate's military career." The
Fifth District found this was an abuse of discretion
"[n]otwithstanding the trial court's good
intentions." Id. The Fifth District also found
an abuse of discretion "[n]otwithstanding the trial
court's good intentions, " where the trial court had
dismissed two charges related to the defendant's driving
without a license, apparently influenced by the
defendant's efforts to obtain a license, the cost of
prosecuting, and the interests of judicial efficiency.
State v. Franklin, 901 So.2d 394, 395 (Fla. 5th DCA
like in Plate and Franklin, the trial
court-notwithstanding its "good intentions"-abused
its discretion in dismissing the charge against A.J. over the
State's objections, based on its perspective of the most
suitable way to address A.J.'s circumstances. The
decision whether to prosecute or to dismiss the charges
against A.J. was vested solely in the State. See
Brosky, 79 So.3d at 135. Accordingly, we reverse and
remand for further proceedings. See Suazo, 973 So.2d
at 1274 (first citing Reedy, 862 So.2d at 942; then
citing State v. Alexander, 831 So.2d 1252, ...