STATE v. SADLER

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District Court of Appeal of Florida,Fifth District.

STATE of Florida, Appellant, v. Larry Bray SADLER, Appellee.

No. 5D05-737.

Decided: December 16, 2005

Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley and Pamela J. Koller, Assistant Attorneys General, Daytona Beach, for Appellant. Paul L. Militello of Militello & Militello, Inverness, for Appellee.

After the lower court granted a rule 3.190(c)(4) motion to dismiss to which no traverse had been filed, the State refiled the same charges.   Upon motion, the lower court dismissed the refiled charges concluding that it had granted the first motion “with prejudice.”   The State challenges the order dismissing the refiled charges.1  We affirm.

Pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), Appellee filed a motion to dismiss in which he alleged that the property he was accused of taking was actually his own property.   The State failed to file a traverse.

A hearing was held during which the following transpired:

THE CLERK:  Larry Sadler, 2004-498.

THE COURT:  Yes, sir?

MR. MILITELLO [defense counsel]:  Your Honor, approaching the podium is Larry Sadler.   Mr. Sadler's case was set for a Motion to Dismiss which is set for today.   It's my understanding that the state attorney's office has reviewed the motion and will acknowledge in good faith they cannot traverse the motion.

THE COURT:  All right.   So let me just turn to the file on Mr. Sadler.   It does appear to be a legally sufficient, properly drawn C-4 Motion to Dismiss.   Mr. Norville, can the state, in good faith, traverse it?

MR. NORVILLE:  No.   Your Honor.   As a matter of fact, we had the chief of security for the corporation in for deposition, I believe, it was last Friday, and he states that they could not state that the property was-that was taken was, in fact, their property.

THE COURT:  Very good.   So based upon that, once, again, Mr. Norville, you continue to live up to the highest expectations of a prosecutor, which is to seek justice, not merely convictions.   And as such, since there's no good faith traverse, the motion is granted.   And, Mr. Sadler, you may go hence without day.   Case is dismissed.   Thank you, Mr. Militello.

(Emphasis added).

One month after the hearing, the State filed another information charging Appellee with the same criminal conduct alleged in the dismissed case.   Appellee again moved to dismiss the charges.   This time the State traversed.   At the hearing on the motion, the prosecutor explained that he had not contacted the victim prior to the hearing on Appellee's first motion to dismiss.   Since that time, however, he had spoken to the victim and did have a good-faith basis to traverse the motion.   The State argued that it was not precluded from refiling the original charges because it had not filed a traverse to the original motion to dismiss.

At the conclusion of the hearing the trial court granted the defense motion stating:

THE COURT:  Thank you very much.   This is the Court's ruling, Mr. Militello [defense counsel].   I'm going to grant the Motion to Dismiss for the follow [sic] reasons:  I find that the dismissal that I granted back in November 4 was with prejudice.   It was this Court's intent with prejudice.

If I haven't said it at least once, I've said it twice or three times, when I say go hence without day, that reflects back to 30 years of my experience when go hence without day means this case is over for Sadler.   That's as far as I'm concerned.

 We commence our discussion by noting the general rule that, when the State does not traverse a rule 3.190(c)(4) motion, the State is not precluded from refiling the same charges after a dismissal.  State v. Soto, 869 So.2d 641 (Fla. 5th DCA 2004).   Notwithstanding the general rule, however, when the court dismisses the charges “with prejudice,” the State may not refile the charges.  State v. Carter, 452 So.2d 1137, 1139 (Fla. 5th DCA 1984).   Here, the lower court did not use the words “with prejudice” when it dismissed the information.   Thus, the issue for our determination in this appeal is whether the “circumstances under which the dismissal was granted and the words employed by the trial court provided a ‘clearly identifiable manifestation’ ” that the lower court intended to dismiss the charges with prejudice.  State v. Anders, 388 So.2d 308, 309 (Fla. 3d DCA 1980) (footnote omitted).   We conclude that the trial court correctly determined that a dismissal with prejudice was intended.

Here, the circumstances suggest that, at the time of the first dismissal, the State did not intend to continue its prosecution.   The prosecutor informed the court that, based on information provided by the corporate victim's representative, it could not prove its case and, therefore, could not traverse the motion.   These circumstances, coupled with the court's use of the phrase “go hence without day,” which are traditional words of finality, clearly support the conclusion that the dismissal was intended to be “with prejudice.”   See Raymond v. Caldwell Banker Residential Real Estate, Inc., 848 So.2d 1160 (Fla. 4th DCA 2003) (“go hence without day” are traditional words of finality);  Black's Law Dictionary (8th ed.2004) (“go hence without day” means that case is finally resolved).   Although this phrase is more customarily used in connection with civil proceedings, we think the language applies with equal import under the circumstances presented here.

AFFIRMED.

This is a garden variety theft case involving a garden variety procedure that has somehow gone all wrong.   After the information was initially filed in this case, the defendant apparently moved to dismiss it, contending that the property at issue was his own property.   The alleged victim of the theft was a corporation, American Coin Merchandising.   The chief of security of the victim corporation was deposed, but he was unable to verify that the recovered items belonged to his employer.   Based on that state of affairs, the State chose not to file a traverse to the motion and the case was dismissed.   So far, so good.   The law is clear that if the State does not traverse a motion to dismiss, the State is entitled to refile the charges.   The State then went out, got better evidence that contradicted the defendant's claim that the items belonged to him and filed a new information.

The majority says that the State loses its ability to refile an information in such a circumstance where the trial court, in granting the defendant's motion to dismiss “intends” to dismiss the case with prejudice.   I do not agree with the majority that the court's “intent” is relevant.   Either the first case was dismissed “with prejudice” or it was not.   The question becomes whether, when the court announced the dismissal and said to Mr. Sadler that he “may go hence without day,” the case was dismissed “with prejudice” under Florida law.

I have searched in vain (as I am sure has the majority) for any Florida criminal case where “go hence without day” has been utilized for any purpose, much less to signify that an information has been dismissed with prejudice.   It is, however, language which is expressly prescribed in the supreme court's approved forms for judgments in civil cases to signify finality.   See Forms 1.989, 1.991, 1.994 Florida Rules of Civil Procedure.   Interestingly, even in civil cases, it does not appear to mean “with prejudice.”   The supreme court uses it in form 1.989 applicable to a judgment of dismissal for lack of prosecution, an event plainly “without prejudice” to refile under Florida law.  Fantasy & Faux, Inc. v. Webb, 834 So.2d 338 (Fla. 5th DCA 2003);  Henson v. Whorf, 466 So.2d 23 (Fla. 5th DCA 1985).  “Go hence without day” appears both by its terms (i.e., nothing else to be scheduled) and in application to mean that the current proceedings are final, but not that refiling of another action is precluded.

In criminal proceedings, where the State clearly may refile a dismissed charge, unless the case is “dismissed with prejudice” there is no dismissal “with prejudice” unless those words are used.   Use of a phrase having legal significance only in civil procedure will not substitute, any more than would something like “go away and don't come back.”   The phrase “with prejudice” is what has meaning in this context in criminal cases, and that is the phrase that must be used.

Even if the majority's “intent” analysis could be credited, it does not hold up here.   Why would the court not use “with prejudice” if that was what was intended?   More important, what possible legal justification could there have been for a dismissal with prejudice?   It is apparent that, at the time of the hearing, the State did not think it could prove its case, but that fact would not justify a dismissal with prejudice.   The controlling procedure allows the State to preserve the possibility of future prosecution for the crime so long as it files no traverse.   It is, in essence, a consent to the dismissal with the understanding that refiling is possible.   There would have had to be some legal justification for a “with prejudice” dismissal in such a “without prejudice” context, and there simply was none.

Finally, the upshot of this case is to allow a very unclear communication to eliminate the State's right to pursue prosecution of an alleged criminal act.   Because the court did not use proper terminology or in any way communicate its intent to disallow the further prosecution of the case, the State lost its right to appeal the dismissal-an appeal it almost certainly would have won.   It is better for this court to say to trial judges that a dismissal with prejudice of an information must be identified as such so that the accused will know where he stands and the State will know how to proceed.

FOOTNOTES

1.   The State did not appeal the first order.   Therefore, we do not address the propriety of the first dismissal.  State v. Anders, 388 So.2d 308, 309, n. 3 (Fla. 3d DCA 1980).

TORPY, J.

SAWAYA, J., concurs.GRIFFIN, J., dissents with opinion.

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