Opinion
No. 1D22-8
06-14-2023
STATE of Florida, Appellant, v. Daniel De La Rea BERCAW, Appellee.
Ashley Moody, Attorney General, and Michael Schaub, Assistant Attorney General, Tallahassee, for Appellant. John A.G. Terrezza, Pensacola, for Appellee.
Ashley Moody, Attorney General, and Michael Schaub, Assistant Attorney General, Tallahassee, for Appellant.
John A.G. Terrezza, Pensacola, for Appellee.
Bilbrey, J.
The State of Florida appeals the denial of its request to continue a suppression hearing when a subpoenaed police officer failed to appear. See § 924.07(1)(h), Fla. Stat. (allowing the State to appeal pretrial orders). The trial court denied the continuance, then granted the motion to suppress which resulted in a dismissal of the case. Because the trial court abused its discretion in denying the continuance, we reverse and remand for further proceedings.
Following a misdemeanor DUI charge, the defense moved to suppress arguing the police officer who stopped Bercaw's vehicle lacked reasonable suspicion for the stop. At the start of the suppression hearing, the prosecutor advised the trial court that the officer who conducted the stop was not present, although he was subpoenaed and informed of the hearing. The trial court gave the State a "few minutes" to locate the officer. When the court later inquired if the officer had been located, the prosecutor responded:
The State would like to put on the record that we timely subpoenaed Officer Kody Tomasegovich. I personally reached out to the PPD liason to verify his email address. On December 16th, I emailed him to inform him that he should be present here. This morning I contacted the PPD liason and informed him that he needed to be present; and at this time, he is not present. For that reason, Your Honor, the State requests that this hearing be reset.
THE COURT: You got subpoena service on him?
[STATE]: Yes, Your Honor.
After hearing from the defense, the trial court announced it would deny the motion to continue. The trial court noted that the officer "was served and it was his obligation to appear."
As this court has explained, "Our review of the trial court's denial of [a] motion for continuance is under the deferential abuse of discretion standard. Review is contextual, very much dependent on the ‘circumstances’ presented in each case." Madison v. State , 132 So. 3d 237, 240 (Fla. 1st DCA 2013) (cleaned up).
Despite our review being deferential to a trial court's ruling on a motion for continuance, the trial court's analysis of the motion must comport with controlling law. Under Geralds v. State , 674 So. 2d 96, 99 (Fla. 1996), in order to obtain a continuance based on the unavailability of a witness, a movant must show (i) prior due diligence in obtaining the witness’ presence, (ii) that the witness would offer substantially favorable testimony, (iii) that the witness was available and willing to testify, and (iv) material prejudice would result if the continuance is denied.
Here, the prosecutor did show prior due diligence in subpoenaing officer and following up with the Pensacola Police Department to secure the officer's attendance at the hearing. The material prejudice experienced by the State is obvious given the grant of suppression and dismissal of the charge. Also, given that the witness was a police officer, it can be presumed that that he would have been available and willing to testify. See State v. Dixon , 225 So. 3d 274, 275–76 (Fla. 4th DCA 2017) ; State v. Humphreys , 867 So. 2d 596, 598 (Fla. 2d DCA 2004). Finally, the officer's testimony would likely be favorable to the State given his sworn arrest report filed with the trial court which explained the basis for the stop. And the officer's testimony was being offered in part to admit a video recording of the purportedly lawful stop.
Thus, because each Geralds factor was satisfied by the State in requesting the continuance, its denial was an abuse of discretion. We reverse and remand for further proceedings below.
REVERSED and REMANDED .
M.K. Thomas and Long, JJ., concur.