        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT


                           STATE OF FLORIDA,
                               Appellant,

                                         v.

                                   C.W., a child,
                                     Appellee.

                                  No. 4D14-1320

                                  [June 17, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos S. Rebollo, Judge; L.T. Case No. 13-2163 DL.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble,
Assistant Attorney General, West Palm Beach, for appellant.

   No brief filed for appellee.

PER CURIAM.

   The State appeals the trial court’s final order sua sponte dismissing the
petition for delinquency filed against C.W. after the State made several
unsuccessful attempts to serve C.W. with a summons to appear. We agree
with the State that in sua sponte dismissing the case, the trial court
improperly ruled on an issue that was not before it and interfered with the
State’s discretion to bring charges against C.W. However, because the
State has not preserved these arguments for appeal, we affirm the
dismissal.

   Nevertheless, we write to emphasize to the trial court that where, as
here, no motion to dismiss has been filed, the trial court is without
authority to dismiss a criminal prosecution sua sponte. State v. D.W., 821
So. 2d 1179, 1180 (Fla. 3d DCA 2002) (“The trial court may adjudicate
only those issues or questions which are properly placed before the court,
such as occurs when the defendant files a sworn motion to dismiss.”);
State v. Leon, 967 So. 2d 437 (Fla. 4th DCA 2007). Additionally, the trial
court’s sua sponte dismissal of the case encroached upon the State’s
discretion to prosecute. Leon, 967 So. 2d at 437. We have previously
instructed that “it is the state attorney, not the trial court[], who ‘has
complete discretion in making the decision to charge and prosecute.’”
State v. W.D., 112 So. 3d 702, 704-05 (Fla. 4th DCA 2013) (quoting
Cleveland v. State, 417 So.2d 653, 654 (Fla. 1982)). A trial court is not
authorized to dismiss a petition based upon the State’s failure to arraign
a juvenile or serve summons on the juvenile or his parents. Id. at 705
(citing State v. D.D.B., 737 So.2d 1178, 1179 (Fla. 2d DCA 1999)) (reversing
dismissal of delinquency case precipitated by State’s failure to serve
summons because, in dismissing the case, “the trial court exceeded its
bounds and encroached upon the prosecutor’s authority”).

   Furthermore, the dismissal of criminal charges is “an action of such
magnitude that resort to such a sanction should only be had when no
viable alternative exists.” Dawson v. State, 951 So. 2d 931, 933 (Fla 4th
DCA 2007) (emphasis added) (quoting State v. Lowe, 398 So. 2d 962, 963
(Fla. 4th DCA 1981)). Here, review of the records indicates that despite
the State’s efforts, C.W. had not made an appearance because she had not
been served, and the State’s investigation revealed that she and her
mother frequently moved. As such, the State requested additional time to
locate and serve C.W. Nevertheless, the request was denied and the trial
court dismissed the petition, apparently sanctioning the State for its delay
in perfecting service. However, because the State requested additional
time to locate and serve C.W., this provided a viable alternative to
dismissal, and as such, the sanction of dismissal was not the trial court’s
last resort in this case.

   Nonetheless, while we agree with the State that the trial court erred in
sua sponte dismissing the case, because the State failed to make these
arguments below, we affirm.

   Affirmed.

STEVENSON, GERBER and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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