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National Crime Victim Law Institute

Barnett v. Antonacci, — So. 3d —, No. 4D12-2939, 2013 WL 4525322 (Fla. Dist. Ct. App. Aug. 28, 2013).

September 17, 2013

Defendant was charged with three counts of fraudulent transactions and one count of second degree grand theft.  Defendant moved to dismiss three of the four counts for failure to comply with the statute of limitations.  The state then filed a nolle prossedismissing all four counts that had been filed against defendant, stating simply that “[a]lthough there was probable cause for arrest and charge of the Defendant(s), the State has entered a Nolle Prosse in this case.”  The victim filed a petition for a writ abating the nolle prosse, arguing that his state constitutional rights to be informed, present, and heard at all crucial stages of the criminal proceeding were violated by his failure to receive advance notice of the decision to file the nolle prosse and to be informed that such an action was being considered.  The court analyzed the victim’s state constitutional “right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings” in the context of the prosecutors’ constitutionally dictated and exclusive discretion regarding whether to file charges or to continue with a prosecution.  The court then concluded that to harmonize victims’ constitutional rights with the separation of powers doctrine embodied in Florida’s constitution, “a prosecutor’s decision to file charges or to discontinue prosecution with a nolle prosse is not a ‘stage’ of the criminal proceeding.”  Instead, the court found that the victims’ constitutional rights to be informed, present, and heard “contemplates in-court hearings before a judge as the forum for exercising the rights[,]” and that the “right to be heard protected [in the state constitution] is not the right to be heard by the prosecutor, but the right to be heard by a judge.”   Declining to “transgress the principle of separation of powers,” the court of appeals denied the victim’s petition for writ relief, affirming the dismissal of the petition.