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 
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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.