State v. Archer , 42 Fla. Supp. 2d 29 ( 1990 )

OPINION OF THE COURT

NADLER, J.

The 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”.

There has been no showing of the withholding or suppressing of evidence 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).

The 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.

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

REVERSED AND REMANDED.

SALMON and KORNBLUM, JJ., concur.