JOHN MCINTOSH, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The district court erred in affording review by certiorari when the state had no direct right of appeal.
The trial court entered a pretrial order finding a minor witness incompetent to testify. The state appealed this order.…
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BARKETT, Justice.
We have for review State v. McIntosh, 475 So. 2d 973 (Fla. 4th DCA 1985), which directly and expressly conflicts with this Court’s decisions in Jones v. State, 477 So. 2d 566 (Fla.1985), and State v. C.C., 476 So. 2d 144 (Fla.1985). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The trial court entered a pretrial order holding that a minor witness was incompetent to testify against McIntosh which the state appealed. The district court determined that the state had no direct right of appeal, treated the appeal as a petition for certiorari, and overturned the order. McIntosh contends that because the district court found that the state had no right to directly appeal the pretrial order,* it was without authority to afford review by way of certiorari. We agree.
In (7.(7., 476 So. 2d at 146, we held that the state is entitled to interlocutory review only in those cases where an appeal may be taken as a matter of right. In State v. G.P., 476 So. 2d 1272 (Fla.1985), we held that no right of review by certiorari exists in the absence of a right of appeal. See also Jones, 477 So. 2d at 566 (appellate court cannot afford review to the state by way of certiorari when the state has no statutory or other cognizable right to appeal the judgment sought to be reviewed).
Accordingly, we quash the decision below on the authority of (7.(7., G.P., and Jones.
It is so ordered.
McDonald, C.J., and ADKINS, BOYD, OVERTON, EHRLICH and SHÁW, JJ., concur. *
Whether the district court’s determination in this regard is correct is not before us.
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Griffin v. State, 526 So. 2d 752 (Fla. 1st DCA 1988)…tled that a child’s competency is fixed when he or she is offered as a witness, and not when the facts testified to occurred. See Stincer, 107 S.Ct. at 2666; State v. McIntosh, 475 So. 2d 973 (Fla. 4th DCA 1985), decision quashed on other grounds in 496 So. 2d 120 (Fla.1986); Morey, Competency of Child Victim, 40 U.Miami L.Rev. at 262. In the instant case, apparently on the basis of the de minimis competency examination conducted at the beginning of the child’s videotaped deposition, the trial court found the…
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State v. Cesaero Brea, 530 So. 2d 924 (Fla. 1988)…by the district court was resolved in State v. Pettis, 520 So. 2d 250 (Fla.1988), which held that the state is not precluded from seeking review of interlocutory orders by common law certiorari. In view of Pettis, the rationale of McIntosh v. State, 496 So. 2d 120 (FIa.1986), is no longer viable. Accordingly, we quash the decision below. We express no opinion on the issue of whether acquittal of the co-defendant on the ground of entrapment precludes introduction of the admissions of the acquitted party under…
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State v. Arriagada, 508 So. 2d 1247 (Fla. 3d DCA 1987)…merated in Florida Rule of Appellate Procedure 9.140(c) and urges this court to treat the moving papers as a petition for certiorari, as was done in Smith. We must decline to grant the relief requested upon the recent authority of McIntosh v. State, 496 So. 2d 120 (Fla.1986). In McIntosh, the trial court ruled that a minor witness was incompetent to testify against the defendant, and suppressed the witness’s testimony. On the authority of (7.(7., G.P., and Jones, the supreme court held that the district court…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. C.C., 476 So. 2d 144 (Fla. 1985)
- Hollis Jones v. State, 477 So. 2d 566 (Fla. 1985)
- State v. G.P., 476 So. 2d 1272 (Fla. 1985)
- State v. Miro Jurisa, 475 So. 2d 973 (Fla. 4th DCA 1985)
- State v. McINTOSH, 475 So. 2d 973 (Fla. 4th DCA 1985)