
    STATE OF FLORIDA v GONZALEZ
    Case No. 84-317 AC
    Eleventh Judicial Circuit, Appellate Division, Dade County
    November 25, 1986
    APPEARANCES OF COUNSEL
    Jim Smith, Attorney General, and G. Bart Billbrought, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellee.
    Before SIMONS, BARAD, GOLDMAN, JJ.
   OPINION OF THE COURT

PER CURIAM.

Appellant was charged with driving under the influence of alcohol in violation of Section 316.193 F.S.

At the time the case was called for trial, the “speedy trial” period was extended due to illness of a State’s witness. The speedy trial period was once again extended at the second setting when the witness was still ill. On the last day at which the speedy trial period was to expire, the case again came on for trial. At this time, the witness was still unavailable and the State elected to proceed without him. The defense moved to discharge and dismiss the charges. The Court granted the motion.

We reverse the Order of Dismissal and remand for trial. Where the State elected to proceed to trial, it was error to dismiss the case, notwithstanding that a prosecution witness, whose absence had prompted an earlier request by the prosecution for a continuance, was still absent. See State of Florida v. Carty, 14 Fla. Supp. 2d 143 (Cir. Ct. Dade 1985).

REVERSED AND REMANDED for trial.  