THE STATE OF FLORIDA, APPELLANT,
v.
ROBERTO ROJAS AND JOSE M. ORTEGA, APPELLEES
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PER CURIAM.
This is an appeal by the state from an order of the trial court dismissing with prejudice the charges against Roberto Rojas and Jose M. Ortega for cocaine trafficking and possession. We reverse. The trial court erred in dismissing the charges because of the state’s failure to produce a witness for deposition.
The state cannot be deemed responsible for its inability to produce a witness where the state learned belatedly of her incarceration in another state and her refusal to testify against the defendants. “There is no showing that the state, either through calculated official ignorance or deliberate, intentional activity, was at fault for its failure to know the informant’s whereabouts.” Guzman v. State, 498 So. 2d 639, 639 (Fla. 3d DCA 1986). Absent such a showing of fault or bad faith, the sanction of dismissal is unwarranted. Id.; State v. Mena, 505 So. 2d 681 (Fla. 3d DCA 1987). Moreover, the state generally does not have an obligation to produce witnesses for deposition. State v. Rodriguez, 483 So. 2d 751 (Fla. 3d DCA 1986).
Reversed and remanded for further proceedings.
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State v. Rogel Vixamar, 687 So. 2d 300 (Fla. 4th DCA 1997)…” [e.o.] On appeal, the state argues that the trial court 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 ea…
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State v. Cecil, 533 So. 2d 884 (Fla. 3d DCA 1988)…ery 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.” (Italics supplied.) We said substantially the same thing in State v. Rojas, 508 So. 2d 449 (Fla. 3d DCA 1987). It thus follows that the first of the two-pronged test for certiorari relief available to the state in these cases, as laid down in Pettis, supra, has been satisfied, i.e., there has been a departure from the essential requireme…
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State v. Haynes, 557 So. 2d 913 (Fla. 3d DCA 1990)…is granted, the order under review excluding a state witness from testifying at trial for failure to appear for numerous defense depositions is quashed, and the cause is remanded to the trial court for further proceedings. See, e.g., State v. Rojas, 508 So. 2d 449 (Fla. 3d DCA 1987); State v. Jackson, 436 So. 2d 985 (Fla. 3d DCA 1983). Our decision, however, does not preclude the trial court from citing the witness for indirect criminal contempt of court if that action is otherwise deemed proper. See, e.g.,…
Authorities Cited
- State v. Eugenio Rodriguez, 483 So. 2d 751 (Fla. 3d DCA 1986)
- Fidel Guzman v. State, 498 So. 2d 639 (Fla. 3d DCA 1986)
- Beylund v. Baltasar Gomez, 498 So. 2d 639 (Fla. 3d DCA 1986)
- State v. Carmelo O. Mena, 505 So. 2d 681 (Fla. 3d DCA 1987)