       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                    v.

                            MARSHA DIXON,
                               Appellee.

                              No. 4D17-481

                             [July 26, 2017]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara R. Duffy, Judge; L.T. Case No. 12-5735
CF10A.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellant.

  Carey Haughwout, Public Defender, and James W. McIntire, Assistant
Public Defender, West Palm Beach, for appellee.

KLINGENSMITH, J.

    Appellee, Marsha Dixon, was charged with violating her probation by
failing to report to the probation office as directed over a course of six
months and by failing to pay her court costs. At Dixon’s final violation of
probation hearing, the State asked the trial court for a continuance
because its sole witness, a probation officer, did not appear to testify.
The trial court denied the request and proceeded with the hearing.
Because the State’s witness did not appear, the State presented no
evidence to establish that Dixon violated the conditions of her probation
and the trial court dismissed the warrant. We find the trial court erred
in denying the continuance, and reverse and remand for a new hearing.

   We review the trial court’s denial of the motion for continuance for
abuse of discretion. See State v. Reed, 421 So. 2d 754, 755 (Fla. 4th
DCA 1982). To prevail on a motion for continuance due to witness
unavailability, a party must show: “(1) prior due diligence to obtain the
witness’s presence; (2) that substantially favorable testimony would have
been forthcoming; (3) that the witness was available and willing to testify;
and (4) that the denial of the continuance caused material prejudice.”
Geralds v. State, 674 So. 2d 96, 99 (Fla. 1996).

   Based on the record, the State satisfied the four factors set forth in
Geralds and should have been granted a continuance. In addition to
subpoenaing the witness, the prosecutor called the witness the day
before trial and twice the day of trial, emailed the witness, and even
called the witness’s place of employment in an effort to locate him. This
was sufficient to show that the State exercised due diligence to obtain its
witness and satisfied the first requirement.

    The second and third factors were also met. Here, the witness was a
probation officer employed by the State. As a sworn law enforcement
officer, prior cases have established that there is a presumption he would
have been available and willing to testify favorably to the State. See State
v. Humphreys, 867 So. 2d 596, 598 (Fla. 2d DCA 2004) (“[A]s the
arresting officers were still employed by Pasco County Sheriff’s Office,
they would have been available and willing to testify in a way likely
favorable to the State; thus, the second and third factors are met.”).

   Finally, the State was materially prejudiced by the denial of a
continuance. Without its sole witness, the State was unable to adduce
any evidence to establish that Dixon willfully and substantially violated
her probation as charged.

   We recognize that Dixon would have been prejudiced had the
continuance been granted, especially since she was incarcerated while
awaiting her hearing. However, when granting a continuance at the
State’s request, a trial court has the ability to alleviate any such
prejudice by scheduling an expedited hearing or releasing the defendant
from detention in appropriate situations with either a low bond or on the
defendant’s own recognizance.

   In sum, because the record reflects that each of the four enumerated
factors were satisfied by the State, the trial court erred in denying the
State’s request for a continuance; therefore, its dismissal of the warrant
was improper. See State v. Cook, 796 So. 2d 1247, 1247-48 (Fla. 5th
DCA 2001) (holding that the trial court erred in denying the State a
continuance when the State’s sole witness, a probation officer, was
unable to travel to a final violation of probation hearing to testify due to
inclement weather). We therefore reverse and remand for the trial court
to conduct a new violation of probation hearing.


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   Reversed and Remanded.

WARNER and CIKLIN, JJ., concur.

                          *       *        *

   Not final until disposition of timely filed motion for rehearing.




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