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Attorney James Hope

Why can’t the victim simply ‘drop the charges’ like he or she wants to do?

If you are arrested (or receive a Summons to appear in answer to an alleged crime), you unfortunately have a problem that involves more than just “you” and the “victim”.   Unlike a civil case (where the Plaintiff can decide to abandon the lawsuit at virtually any point in time), all criminal charges are brought by the State, in behalf of the State.  For example, a formal charge might allege that “In Lake County, Florida, Mr. Jones struck Ms. Smith without her consent against the peace and dignity of the State of Florida.”  Hence-- as the following Court decision makes clear-- neither the victim nor the Judge can override a Prosecutor’s decision in this regard:

[The victim] told the trial court that she and the defendant were working on getting the family back together and didn’t want to go forward with the prosecution.  The court then sua sponte dismissed the case “at the victim’s request.”  The State objected to the dismissal; the trial court suggested that the prosecutor appeal.

The State argues that only the prosecutor has the authority to decide whether to go forward with the prosecution and that the court erred in sua sponte dismissing the case.  We agree and reverse.

The prosecutor has the sole discretion to charge and prosecute criminal acts.  McArthur v. State, 597 So.2d 406, 408 (Fla. 1st DCA 1992).  This discretion in not affected by a victim’s change in desire to prosecute.  Id.  It is not altered by a victim’s refusal to testify.  State v. Bryant, 549 So.2d 1155, 1155 (Fla. 3rd DCA 1989).  This discretion is inviolate “notwithstanding the court’s belief that the best interests of the public and the parties would be served by dismissal.”  State v. Wheeler, 745 So.2d 1094, 1096 (Fla. 4th DCA 1999).  [Emphasis added.] State v. Greaux, 977 So.2d 614, 615 (Fla. 4th DCA) 2008.

Does this mean that what the “victim” wants is irrelevant?

Not exactly.  Although some State Attorney’s Offices have “no drop” policies in effect with regard to certain offenses (such as Domestic Violence related crimes), it is obviously better if the victim is ‘in your corner’ as opposed to seeking to have your head on a silver platter.  The point, however, is that you cannot naively assume that you do not have a potentially serious criminal problem to worry about, simply because the victim “doesn’t want to testify”, or some variation on that sentiment.  (Read the Greaux case, above!)  So it is still just as wise as ever to seek experienced legal counsel as soon as possible in these instances.  That is why I offer a free, no-obligation, office consultation.

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