DAVID COUSINO AND SHARON COUSINO, AS NEXT FRIENDS AND NATURAL GUARDIANS OF THE MINOR, JUSTIN COUSINO, PETITIONERS,
v.
THE STATE OF FLORIDA, FRANCISCO FUSTER ESCALONA, A/K/A FRANK FUSTER, ILEANA FUSTER, AND THE HONORABLE ROBERT NEWMAN, RESPONDENTS
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.
Parents of a minor child sought a writ of certiorari to challenge an alleged denial of their motion for a protective order regarding the child's deposition in a criminal case involving charges against Frank and Ileana Fuster. The appellate court dismissed the petition as premature because the trial court had not actually denied the motion but had instead ordered that the deposition be discontinued pending further court order.
The petition for writ of certiorari is dismissed as premature because the trial court has not denied the motion for protective order; rather, it has ordered that the deposition be discontinued until further order. The dismissal is without prejudice, and petitioners may seek appropriate relief if and when the trial court enters a further order requiring the child's deposition.
[1] A petition for writ of common law certiorari is premature when the trial court has not yet denied a motion for a protective order, but has instead ordered a deposition to…
[2] Appellate courts will not speculate on whether to grant certiorari review if a trial court later enters an order imposing conditions on a deposition.
Previewing 2 of 3 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 trial court has not denied the motion for protective order and indeed has ordered that the deposition of the child be discontinued until further order of the trial court”
Establishes the factual basis for dismissing the petition as premature—the trial court had not actually denied the requested relief
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJustin Cousino, a minor, was the subject of a deposition in a case against Frank and Ileana Fuster. The child's parents (David and Sharon Cousino) fil…
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 Motion For Protective Order cases and more on FLexlaw
PER CURIAM.
The petition for writ of common law certiorari to review an order of the trial court which purportedly denied the petitioners’ motion for a protective order is dismissed as premature. The record fairly reflects that the trial court has not denied the motion for protective order and indeed has ordered that the deposition of the child be discontinued until further order of the trial court.1 Our dismissal is without prejudice to the petitioners to seek appropriate relief in this court if and when the trial court enters some further order requiring that the child be deposed.2
Petition dismissed.
DANIEL S. PEARSON and JORGEN-SON, JJ., concur. . Although we do not have the benefit of a written order, the following appears at the conclusion of the hearing on petitioners' motion for protective order:
"MR. SAMEK [DEFENSE COUNSEL]: Judge, would it be fair to summarize that the Motion for Protective Order is to continue-as is, at this time, and we are not to continue the deposition without further Order of the Court?
“THE COURT: Correct. That’s what I’m saying. That's all I’m doing at this time.” (Tr. 30).
Later, in unmistakable terms, the court said:
"THE COURT: I’m not going to have him reset for another deposition until further Order of this Court.
"I think Mr. Samek mentioned that in summing it up and that’s the posture I’m going to leave it.” (Tr. 31).
. We note that, in addition to asking this court to preclude the defense from further questioning of the child, the petition for writ of certiorari seeks the alternative relief that all proposed questions be propounded in writing to and approved by the trial court, and/or that further depositions be conducted in the presence of the trial judge. The petitioners have not yet sought this or other alternative relief in the trial court, and we will not speculate whether petitioners will seek certiorari review if the further order of the trial court imposes any of these or like conditions on the taking of the child’s deposition.
SCHWARTZ, Chief Judge
(dissenting).
In resolving the discovery issue before us, we must balance the cognizable, permissible interests legitimately to be served by taking this child’s deposition — which, as opposed to the impermissible, indeed reprehensible ones it actually promotes, I believe to be utterly non-existent — with the potential harm to the child which would be obviated by precluding it. State v. Keitz, 410 So. 2d 625 (Fla. 4th DCA 1982); see generally South Florida Blood Service, Inc. v. Rasmussen, 467 So. 2d 798 (Fla. 3d DCA 1985); Dade County Medical Ass’n v. Hlis, 372 So. 2d 117 (Fla. 3d DCA 1979). On that basis, I think it clear that the trial court abused its discretion and departed from the essential requirements of the law in denying the motion for a protective order that no deposition whatever be taken. Hence, I would quash the order under review outright.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Simmons, 581 So. 2d 209 (Fla. 3d DCA 1991)…r is directed — that is, the child and her representatives — and (b) there will never be one between the state and the defendant if the direction is followed, we determine that certiorari is premature and should now be denied.1 See Cousino v. State, 473 So. 2d 777 (Fla. 3d DCA 1985); Dade County Medical Ass’n v. Hlis, 372 So. 2d at 119 n. 1; Travelers Indemn. Co. v. Fields, 262 So. 2d 222 (Fla. 1st DCA 1972); Strain v. Miami Transfer Co., 155 So. 2d at 172; see also State Farm Mutual Auto. Ins. Co. v. Lenard,…
Authorities Cited
- Dade Cnty. Med. Ass'n v. Hlis, 372 So. 2d 117 (Fla. 3d DCA 1979)
- T.L.F. v. State, 467 So. 2d 798 (Fla. 3d DCA 1985)
- State v. Mitchell and Randye Keitz, 410 So. 2d 625 (Fla. 4th DCA 1982)