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42 Fla. Supp. 2d 29

State v. Archer

Circuit Court for the Judicial Circuits of Florida · decided 1990-06-21

Relies on Brady v. State of Maryland · 363 So. 2d 324 - State v. Sobel · 342 So. 2d 1094 - State v. Smith

Decided 1990-06-21

¶1OPINION OF THE COURT

NADLER, J.

¶2The subject of this appeal is the loss of a video tape in a case of driving under the influence and the Court’s dismissal thereof because of the “lost tape”.

¶3There has been no showing of the withholding or suppressing of *30evidence in this case which would mandate a dismissal. Brady v Maryland, 373 US 83, 87 S.Ct. 1194, 1196, 10 L.Ed 2d 215 (1963). The Courts of this state have adopted a balancing approach on the matter of lost tapes concluding that dismissal is an extreme sanction to be utilized with the greatest caution and deliberation. State v Smith, 342 So.2d 1094 (Fla. 2d DCA 1977).

¶4The Trial Judge should consider all the evidence to determine whether its loss was prejudicial to the defendant before granting the motion to dismiss. State v Sobel, 363 So.2d 324 (Fla. 1978). This was not done in the instant case.

¶5The Order of Dismissal is herewith vacated and this cause is remanded for further proceedings consistent herewith.

¶6REVERSED AND REMANDED.

¶7SALMON and KORNBLUM, JJ., concur.

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