THE STATE OF FLORIDA, PETITIONER,
v.
MARK JACKSON, RESPONDENT
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The state is not responsible for producing a witness subpoenaed by a defendant for discovery purposes, and ordering the state to do so or dismiss the case is a departure from the essential requirements of law.
During preparation for a second trial, the respondent's counsel subpoenaed a witness who failed to appear multiple times. The trial court ordered the …
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PER CURIAM.
The respondent is charged with armed robbery and possession of a firearm during the commission of a felony.
During preparation for a second trial of respondent (a prior trial had resulted in a conviction and reversal on appeal), counsel for respondent served Loula Kyles with a subpoena for deposition. She failed to appear at the designated time, whereupon the trial court ordered the state to produce the witness. The state failed to produce the witness as ordered. Several other notices to appear were not responded to by Kyles. Respondent moved to exclude the witness on the basis of her numerous failures to appear. The trial court granted the respondent’s motion to exclude the witness by written order. The state has petitioned for common law certiorari to quash the order granting respondent’s motion to exclude. We find merit in the state’s petition and quash the order under review.
It is not the responsibility of the state to produce a witness subpoenaed by a defendant for discovery purposes; to order the state to do so, or to dismiss a criminal case for failure of the state to do so, constitutes a departure from the essential requirements of law. State v. Adderly, 411 So. 2d 981 (Fla. 3d DCA 1982); Knight v. State, 373 So. 2d 52 (Fla. 4th DCA 1979), cert. denied, 385 So. 2d 761 (Fla.1980); 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).
The petition for certiorari is granted and the order under review is quashed. It is so ordered.
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State v. Rogel Vixamar, 687 So. 2d 300 (Fla. 4th DCA 1997)…t should have imposed a sanction less severe than dismissal, relying on State v. Bouma, 554 So. 2d 641 (Fla. 4th DCA 1989), State v. Bryant, 549 So. 2d 1155 (Fla. 3d DCA 1989), State v. Rojas, 508 So. 2d 449 (Fla. 3d DCA 1987), and State v. Jackson, 436 So. 2d 985 (Fla. 3d DCA 1983). Its argument is, essentially, that the judge should have afforded the state a continuance to produce the witness and the ASA assigned to prosecute the case. I find these eases distinguishable. In Bouma, the trial court dismissed…
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State v. Cecil, 533 So. 2d 884 (Fla. 3d DCA 1988)…... ” At the outset, defendant/appellee now concedes that the exclusion of the victim's testimony under the circumstances here constitutes a departure from the essential requirements of law. Obviously we concur, because we said in State v. Jackson, 436 So. 2d 985, 986 (Fla. 3d DCA 1983): “It is not the responsibility of the state to produce a witness subpoenaed by a defendant for discovery purposes; to order the state to do so, or to dismiss a criminal case for failure of the state to do so, constitutes a d…
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State v. Gonzalez, 695 So. 2d 1290 (Fla. 4th DCA 1997)…that she had no interest in pursuing the case. It is well settled that it is not the state’s responsibility to produce a witness subpoenaed by a defendant for discovery purposes. State v. Cecil, 533 So. 2d 884 (Fla. 3d DCA 1988); State v. Jackson, 436 So. 2d 985, 986 (Fla. 3d DCA 1983); State v. Banks, 349 So. 2d 736 (Fla. 3d DCA 1977); State v. Roig, 305 So. 2d 836 (Fla. 3d DCA 1974). In Knight v. State, 373 So. 2d 52, 53 (Fla. 4th DCA 1979), cert. denied, 385 So. 2d 761 (Fla.1980), this court rejected the…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- 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)
- State v. Zeb Adderly, 411 So. 2d 981 (Fla. 3d DCA 1982)
- Knight v. State, 373 So. 2d 52 (Fla. 4th DCA 1979)