DEBORAH H. GRANADE, APPELLANT,
v.
HONORABLE MARSHALL H. ADER, COUNTY COURT JUDGE OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR DADE COUNTY, FLORIDA, APPELLEE
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The court held that a police officer's conduct during a deposition does not constitute state action, and therefore, their refusal to answer questions does not trigger a discovery violation that would warrant a discharge on speedy trial grounds.
Granade was arrested for DUI and demanded a jury trial and discovery. During Officer Coon's deposition, he refused to answer certain questions. Granad…
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PER CURIAM.
Deborah Granade’s motion for rehearing is granted. Our original opinion filed May 24,1988, is vacated, and the following opinion substituted:
Deborah Granade appeals from an order of the circuit court denying her petition for a writ of prohibition. We affirm.
On February 19, 1987, Granade was arrested by Officer Michael Coon, a Metro-Dade motorcycle police officer, and charged with driving under the influence in violation of section 316.193, Florida Statutes (1985).
On March 27, Granade entered demands for a jury trial and for discovery. The state’s discovery response listed Officer Coon as the state’s only witness. The case had been set for trial on April 16. Granade scheduled Officer Coon’s deposition for April 15. During his deposition, Officer Coon declined to answer five questions on the basis that the questions either were hypothetical or were not relevant to his investigation. The state announced ready for Granade moved for a continuance chargeable to the state based mainly upon Officer Coon’s refusal to answer all deposition questions.
The trial court granted the motion but charged the continuance to Gra-nade. Trial was reset for May 26. On the day of trial, Granade advised the trial court that the speedy trial period had expired on May 20. Granade filed a motion for discharge which the trial court denied. Thereafter, Granade sought a writ of prohibition from the appellate division of the circuit court. Her petition was denied, giving rise to this appeal. trial on April 16.
A defense continuance may result in a dismissal on speedy trial grounds where the defendant can show both an actual state violation of the discovery rules and that late or inadequate discovery was furnished “at a time which will not enable the defendant to make use of it in the preparation of his defense before the expiration of the speedy trial time limits....” State v. Del Gaudio, 445 So. 2d 605, 611 (Fla. 3d DCA), rev. denied, 453 So. 2d 45 (Fla.1984); State v. Brown, 527 So. 2d 209 (Fla. 3d DCA 1988); Fla.R.Crim.P. 3.191(d)(3).
Although Granade argues that Officer Coon’s failure to respond satisfactorily to the questions posed at deposition caused severe prejudice to her defense, “prejudice to the defendant is irrelevant where the State is not obliged to furnish the discovery in the first instance, and thus, the State’s inaction or refusal does not constitute a discovery violation. In such a case, the imposition of any sanction against the State ... is impermissible.” Del Gaudio, 445 So. 2d at 609 n.
4. Here, no discovery violation resulted from Officer Coon’s lack of response at deposition. Even if the officer’s lack of response were deemed a violation, it would be inappropriate to sanction the state for discovery violations when it is the witness’s conduct that is at issue. In matters of discovery, a police officer is not an agent of the state. The officer’s conduct as a witness, therefore, does not amount to state action. See State ex rel. Betancourt v. Klein, 354 So. 2d 392 (Fla. 3d DCA 1978) (police officer’s failure to respond to witness subpoena does not constitute state action).
The order under review is, accordingly, AFFIRMED.
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State v. Guzman, 697 So. 2d 1263 (Fla. 3d DCA 1997)…. Guzman, 667 So. 2d 989 (Fla. 3d DCA 1996); Colby v. McNeill, 595 So. 2d 115 (Fla. 3d DCA 1992), review denied, 604 So. 2d 487 (Fla.1992); State v. Brown, 527 So. 2d 209 (Fla. 3d DCA 1988), review denied, 534 So. 2d 398 (Fla.1988); Granade v. Ader, 530 So. 2d 1050 (Fla. 3d DCA 1988), review denied, 541 So. 2d 1172 (Fla.1988); Passavant v. State, 523 So. 2d 660 (Fla. 3d DCA 1988)(per curiam); Stemas v. State, 522 So. 2d 401 (Fla. 3d DCA 1988)(per curiam); Prusaski v. State, 522 So. 2d 400 (Fla. 3d DCA 1988)(pe…
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The Honorable Jonathan T. Colby v. McNEILL, 595 So. 2d 115 (Fla. 3d DCA 1992)…. . Godwin v. State, 580 So. 2d 176 (Fla. 1st DCA), rev. denied, 584 So. 2d 998 (Fla.1991); State v. A.H., 550 So. 2d 138 (Fla. 2d DCA 1989); Birken v. Scheer, 543 So. 2d 330 (Fla. 4th DCA), rev. denied, 553 So. 2d 1166 (Fla.1989); Granade v. Ader, 530 So. 2d 1050 (Fla. 3d DCA), rev. denied, 541 So. 2d 1172 (Fla.1988); Brown v. State, 527 So. 2d 209 (Fla. 3d DCA), rev. denied, 534 So. 2d 398 (Fla.1988); Lobik v. State, 506 So. 2d 1077 (Fla. 2d DCA 1987); George v. Trettis, 500 So. 2d 588 (Fla. 2d DCA 1986); S…1 / 2
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State v. Pope, 675 So. 2d 165 (Fla. 3d DCA 1996)…. 2d 913 (Fla. 3d DCA 1990); State v. Hill, 532 So. 2d 1303 (Fla. 2d DCA 1988) (holding that trial court erroneously sanctioned State by dismissing the case when a State witness failed to appear at three deposition appointments). In Granade v. Ader, 530 So. 2d 1050 (Fla. 3d DCA), review denied, 541 So. 2d 1172 (Fla.1988), this court held that a trial court cannot sanction the State for the actions of a State witness when it is the conduct of the witness that is at issue. A State witness is not an agent of the…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. del Gaudio, 445 So. 2d 605 (Fla. 3d DCA 1984)
- State v. Brown, 527 So. 2d 209 (Fla. 3d DCA 1988)
- Hillier v. Purdy, 354 So. 2d 392 (Fla. 3d DCA 1978)