
    STATE OF FLORIDA v PERALA
    Case No. 90-61 AC
    Seventeenth Judicial Circuit, Broward County
    December 27, 1990
    APPEARANCES OF COUNSEL
    Joel Silvershein, Assistant State Attorney, for appellant.
    Gene Reibman, Esquire, for appellee.
   OPINION OF THE COURT

MOE, L., Circuit Judge.

THIS CAUSE comes before the Court upon the appeal of a motion to dismiss for lack of prosecution entered against the State of Florida in the case of State of Florida v Thomas Denton Perala, (case #90-92 MM) on July 17, 1990

Before a jury was sworn in to try this case, the State told the trial judge that it was not prepared to go forward with the case, and moved the Court for an order continuing the trial. The defendant’s attorney then moved to dismiss the case for lack of prosecution. The trial court denied the motion for continuance and granted the motion to dismiss. There was no evidence of prejudice to the defendant by a continuance or determination or consideration of alternatives to dismissal.

The Second District Court of Appeals stated in State v Hamilton, 387 So.2d 555, 556 (Fla. 2d DCA 1980), “dismissal of an otherwise valid information is too extreme a sanction where there is no showing of prejudice or unfairness to the appellee.” The trial court had a less severe alternative to dismissal in that it could have denied the continuance and proceeded with jury selection. At this point the Appellant could have gone to trial or enter a nolle prosequi. By failing to use this less severe alternative, as several appellate courts have ruled, the trial court abused its discretion. State v S.M.F., 546 So.2d 20 (Fla. 3d DCA 1989); State v Lundy, 531 So.2d 1020 (Fla. 2d DCA 1988); State v Evans, 418 So.2d 459 (Fla. 4th DCA 1982); Hamilton, 387 So.2d at 556.

Accordingly, it is hereby,

ORDERED AND ADJUDGED that the decision of the trial court is REVERSED AND REMANDED for further proceedings consistent with this opinion.

DONE AND ORDERED in chambers, at the Broward County Courthouse, 201 Southeast 6th Street, Fort Lauderdale, Broward County, Florida this 20th day of December, 1990.  