Opinion
No. 99-0859.
Opinion filed December 22, 1999.
An appeal from the Circuit Court for Dade County, Lawrence A. Schwartz, Judge, L.T. No. 96-27451.
Bennett H. Brummer, Public Defender, and Frank P. Triola, Special Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
Before NESBITT, COPE and SORONDO, JJ.
After remand in Izquierdo v. State, 724 So.2d 124 (Fla. 3d DCA 1998), defendant-appellant Zacarias Jaime Izquierdo moved to dismiss the information, contending that the prosecutorial misconduct described in the earlier appeal was so pervasive that the defendant was deprived of due process of law. See id. at 126. The defendant based his argument on this court's opinion in the earlier appeal, as well as the briefs from the earlier appeal.
In reversing the defendant's conviction, this court said, "After remand, the trial court may, in its reviewable discretion, either grant a new trial or dismiss the case outright if it finds that the prosecutorial misconduct, particularly considering the possibility that the office of the State Attorney was itself directly implicated by retaining [prosecutor] Hyman after notice of his proclivities, was so pervasive that the defendant was deprived of due process. See Munoz v. State, 629 So.2d 90, 98 (Fla. 1993)." Izquierdo, 724 So.2d at 126.
By remanding for further consideration by the trial court, we think the prior panel necessarily intended that the defendant on remand would have to make a more particularized showing in order to obtain dismissal instead of a new trial. If (as defendant contends) it was simply a question of reviewing the record developed in the prior appeal, then the prior panel could have made the decision to order a new trial, or dismiss, without the necessity of remand.
In the proceedings below, the trial court was informed that the prior prosecutor had resigned, so that any retrial would necessarily be accomplished by different personnel. There was no showing that the misconduct complained of on the prior appeal represented institutional policy of the State Attorney's office, nor was there a showing that the harm described in the prior appeal could not be cured by a new trial, or rose to the level described in Munoz. We find no abuse of discretion in the denial of the motion to dismiss.
After the motion to dismiss was denied, the defendant entered a no contest plea, reserving the right to appeal the denial of the motion to dismiss. As no reversible error has been shown, the judgment is
Affirmed.
NESBITT and COPE, JJ., concur.
I respectfully dissent. Having reviewed the trial transcript, the briefs filed by both sides in the original appeal, and the briefs filed in the present case, I would reverse the decision of the trial judge denying the defendant's motion to dismiss and remand with directions to grant the motion. In State v. Williams, 623 So.2d 462 (Fla. 1993), the Florida Supreme Court, within the framework of an entrapment case, explained the concept of due process of law as follows:
Due process of law is a summarized constitutional guarantee of respect for personal rights which are "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L. Ed 674 (1934). Due process of law imposes upon a court the responsibility to conduct "an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice." Malinsky v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 788-89, 89 L. Ed 1029 (1945). Defining the limits of due process is difficult because "`due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Joint Anti-Facist Refugee Comm. v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). Rather, due process is a general principle of law that prohibits the government from obtaining convictions "brought about by methods that offend `a sense of justice.'" Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952).
Id. at 465; see also Munoz v. State, 629 So.2d 90, 98 (Fla. 1993). I believe that this prosecutor's outrageous behavior in this case, just one of many similar transgressions, even if it does not represent the institutionalized policy of the State Attorney's Office, violated the defendant's right to due process of law. "[T]he only appropriate remedy to deter this outrageous law enforcement conduct is to bar the defendant's prosecution." Williams, 623 So.2d at 467.