THE STATE OF FLORIDA, APPELLANT,
v.
SERGIO MIGUEL MESA, ROBERTO LEON, FERNANDO BARBARO QUINTANA AND FEDERICO FELIPE DELAPAS, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida appellate court reversed a trial court's dismissal of criminal charges against defendants accused of drug-related offenses. The trial court had dismissed the case after two confidential informants invoked their Fifth Amendment privilege against self-incrimination and refused to testify at depositions, reasoning that this interfered with defendants' right to raise an entrapment defense. The appellate court held that dismissal was improper because defendants made no preliminary showing that entrapment was colorable and the state cannot be sanctioned for witnesses invoking constitutional rights.
A trial court may not dismiss charges under these circumstances. First, defendants failed to make the preliminary showing of colorability necessary to require even disclosure of the informants' identities, let alone their testimony. Second, even if the informants' testimony were material to the defense, the state cannot be sanctioned by dismissal for witnesses invoking their constitutional rights, as the prosecution did not improperly induce the invocation.
[1] A preliminary showing of colorability is necessary to require disclosure of informant names.
[2] Dismissal of a prosecution is not warranted when defense witnesses invoke the privilege against self-incrimination.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the defendants did not make the preliminary showing of colorability of the defense which is necessary to require even the disclosure of the names of the informants”
Establishes that defendants must first demonstrate their entrapment defense has some factual basis before they are entitled to discovery regarding confidential informants
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendants were charged with crimes and announced they would raise an entrapment defense. During discovery, two confidential informants were subpoenae…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Dismissal Of Information cases and more on FLexlaw
SCHWARTZ, Judge.
Holding that the defendants’ right to demonstrate an anticipated entrapment defense had been improperly interfered with, the trial court dismissed the information against the defendants because two confidential informants asserted their privilege against self-incrimination and refused to testify at their depositions. For two reasons, this ruling was palpably erroneous and is reversed.
First, although their counsel stated that entrapment would be raised by the defendants, there was no substantiation of that claim, by way of sworn testimony or otherwise, and no evidentiary indication that the witnesses in question were involved in any such activity.
Hence, the defendants did not make the preliminary showing of colorability of the defense which is necessary to require even the disclosure of the names of the informants. Hawkins v. State, 312 So. 2d 229 (Fla. 1st DCA 1975); United States v. Gonzales, 606 F. 2d 70 (5th Cir. 1979); United States v. Moreno, 588 F. 2d 490 (5th Cir. 1979), cert. denied, 441 U.S. 936, 947, 99 S.Ct. 2061, 2168-69, 60 L.Ed.2d 666, 1049, 1050 (1979); see also, Treverrow v. State, 194 So. 2d 250 (Fla.1967); compare, State v. Hassberger, 350 So. 2d 1 (Fla.1977); State v. Williams, 369 So. 2d 416 (Fla. 3d DCA 1979).
It is clear beyond question, therefore, that there was no valid basis for taking the ultimate step of dismissing the case outright, after the state had nevertheless revealed the identity of the c. i. s. Elkins v. State, 388 So. 2d 1314 (Fla. 5th DCA 1980).
Moreover, even if, as it does not, the record contained some indication of the significance to the defense of the informants’ testimony, the action taken below was unjustified. The state is not ordinarily obliged, at pain of dismissal, even to produce prosecution, much less defense, witnesses for deposition or trial. State v. Merritt, 394 So. 2d 531 (Fla. 3d DCA 1981); State v. Ashley, 393 So. 2d 1168 (Fla. 3d DCA 1981) (1981); Knight v. State, 373 So. 2d 52 (Fla. 4th DCA 1979), cert. denied, 385 So. 2d 761 (Fla.1980); State v. Banks, 349 So. 2d 736 (Fla. 3d DCA 1977); State ex rel. Gerstein v. Durant, 348 So. 2d 405 (Fla. 3d DCA 1977); State v. Roig, 305 So. 2d 836 (Fla. 3d DCA 1974); State v. Velasquez, 305 So. 2d 837 (Fla. 3d DCA 1974), cert. denied, 315 So. 2d 196 (Fla.1975).
A fortiori the prosecution cannot be held responsible for the fact that a witness invokes the fifth amendment.1 See, United States v. Turkish, 623 F. 2d 769, 773-74 (2d Cir. 1980), and cases cited. The upshot of the situation below is simply that the testimony of two witnesses who may or may not be favorable became unavailable, at least pre-trial, to the defense because of the invocation of their constitutional rights. The state has done nothing which, at this stage, calls for any judicially-imposed sanction whatever2. Dismissal of the entire prosecution was manifestly inappropriate.
The order below is reversed for reinstatement of the information and further proceedings consistent herewith.
Reversed.
. There is no indication that the prosecution improperly induced the witnesses to take the fifth. Cf., Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); United States v. Morrison, 535 F. 2d 223 (3d Cir. 1976).
. It has been suggested that a possible remedy in analogous situations is to require that the fifth amendment defense witness be granted immunity by the state or the court. But see United States v. Turkish, supra, and the authorities cited therein, which generally reject the practice. Without intimating any view on that issue, we note that even those authorities which have approved such a requirement, e. g., Government of the Virgin Islands v. Smith, 615 F. 2d 964 (3d Cir. 1980), do so only under severely limited conditions and circumstances which do not remotely appear in this case.
See also, People v. Thomas, 51 N.Y.2d 466, 434 N.Y.S.2d 941, 415 N.E. 2d 931, 28 Crim.L. Rptr. 2439 (N.Y.1980) (no right to jury charge that defense witness has invoked privilege against self-incrimination).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
-
State v. del Gaudio, 445 So. 2d 605 (Fla. 3d DCA 1984)…any sanction against the State — and, a fortiori, dismissal of the charges — is impermissible. See State v. Valdes, 443 So. 2d 302 (Fla. 3d DCA 1983) (dismissal improper where State fails to produce State’s witnesses for deposition); State v. Mesa, 395 So. 2d 242 (Fla. 3d DCA 1981) (dismissal improper where, assuming, arguen-do, that defendants who asserted an entrapment defense made a sufficient showing to warrant deposing confidential informants, the informants’ refusal to testify on self-incrimination gro…
-
State v. Zamora, 534 So. 2d 864 (Fla. 3d DCA 1988)…iately prior to this possession, he purchased marijuana from a "female” in the house). . State v. Perez, 438 So. 2d 436 (Fla. 3d DCA 1983) (asserted defense of entrapment to sale of cocaine was held legally unavailable to defendant); State v. Mesa, 395 So. 2d 242 (Fla. 3d DCA 1981) (defendant made no evidentiary showing (a) to support his asserted entrapment defense to the charged crime, or (b) to support the claim that the confidential informants were involved in or privy to any such entrapment); Elkins v.…
-
State v. Brown, 527 So. 2d 209 (Fla. 3d DCA 1988)…m the scene of her drunken driving arrest in time to conveniently depose them before the trial. Neither of these factors makes out a violation by the state of any discovery rule. See State v. Valdez, 443 So. 2d 302 (Fla. 3d DCA 1983); State v. Mesa, 395 So. 2d 242 (Fla. 3d DCA 1981); State v. Roig, 305 So. 2d 836 (Fla. 3d DCA 1974). Second, and perhaps more important, the circumstances were not shown, as required, to have substantially and adversely affected the defendant in her preparation for trial. There w…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (22 total)
- Washington v. Texas, 388 U.S. 14 (U.S. 1967)
- United States v. Morrison, 535 F.2d 223 (3d Cir. 1976)
- Gov't OF the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980)
- Westberry v. Daves Auto Parts, 194 So. 2d 250 (Fla. 1967)
- United States v. Turkish, 623 F.2d 769 (2d Cir. 1980)
- State v. Hassberger, 350 So. 2d 1 (Fla. 1977)
- State v. Eutansio Antolin Roig, 305 So. 2d 836 (Fla. 3d DCA 1974)
- State of Fla. ex rel. Richard E. Gerstein v. The Honorable N. Joseph Durant, Jr., 348 So. 2d 405 (Fla. 3d DCA 1977)
- United States v. Gonzales, 606 F.2d 70 (5th Cir. 1979)
- Gordon v. United States, 441 U.S. 936 (U.S. 1979)