Prosecutor Sued Over Nolle Pros

Usually, I’m excited to tell you all about what’s happening in Florida’s criminal justice system. And, that’s sort of true today, but we’re not going to examine a criminal case. Today, its a civil case. As a general rule, civil cases are pretty boring–so boring that some of you won’t even make It to the next sentence. Believe it or not, the case of Barnett v. Antonacci is interesting. 122 So. 3d 400 (Fla. 4th DCA 2013).

In 2012, a prosecutor in the Nineteenth Judicial Circuit, charged defendant Chris Blane with three counts of fraudulent transactions and one count of second degree grand theft. Barnett was the victim of these crimes. This first prosecutor had a conflict, so the case was sent to the Fifteenth Judicial Circuit, State Attorney Antonacci–now the defendant in this lawsuit (odd, isn’t it?). Blane’s criminal defense attorney filed several Motions to Dismiss based upon violations of the Statute of Limitations, but these motions were never heard, as the “new” prosecutor eventually filed a nolle pros (fancy term for “dropped charges”) on all four counts. The record doesn’t indicate why the charges were dropped, but when the victim found out, he sued the prosecutor. Technically, the victim sued to have the nolle pros set aside, and to have another prosecutor appointed to pursue the charges.

The victim was never told that the charges were going to be dropped, nor told that such a move was even being considered. Bad communication, for sure–but I’m not so sure a lawsuit is the proper response. Nonetheless, victim Barnett argued that the Florida Constitution compels the prosecutors to inform him of their actions. And, because he was not informed, his rights were violated, and the court should appoint another prosecutor. Hum, that’s asking for a lot, don’t you think? Article I, section 16(b) of Florida’s Constitution states:

Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.

Barnett reasoned that “the Florida Constitution prohibits disposition of a criminal case without notifying the victim.” Id. at 404. Is this true? Must the prosecutor tell a victim what they’re going to do? There’s a problem with Barnett’s interpretation. The Constitution only applies to “crucial stages of criminal proceedings”. A decision to drop a case does not constitute any sort of “stage” in a criminal proceeding. Furthermore, our prosecutors are part of the executive branch of government. The court system, obviously, is the judicial branch (think back to 6th grade government class, you can do it). The judicial branch has no business telling prosecutors which cases they should pursue, and which they should dump. A criminal case is a lawsuit of sorts, filed by the executive branch. A judge cannot come along and force them to file a suit. Sure, a judge can dismiss the lawsuit, or make rulings that will affect the outcome of the lawsuit–but “the courts are not to interfere with the free exercise of the discretionary powers of the prosecutor in his control over criminal prosecutions.” Id.

The appeals court denied Barnett’s lawsuit, reasoning that Barnett’s interpretation of Florida’s Constitution “would lead to an absurd result; a victim would have the right to be “present” for the prosecutor’s in-office decision not to file charges or when a prosecutor discontinues prosecution by filing a nolle prose with the clerk of the court. The right to be heard protected under section 16(b) is not the right to be heard by the prosecutor, but the right to be heard by a judge. A judge has no supervisory control over a prosecutor’s decision not to prosecute. A prosecutor unilaterally may file new charges or nolle prose a case without the approval of a court.” Id. at 406.

Victims should not be permitted to bully prosecutors. Unfortunately, it happens all the time. At least this case recognizes the State’s awesome power to drop a case. It is a noble decision, and a difficult one. Justice often demands that charges be dropped, but prosecutors can get too intimidated by the victims and bosses to do what’s right. So, hats off to this one prosecutor who did the right thing (maybe), only to find himself in court as a defendant.