STATE OF FLORIDA, APPELLANT,
v.
DRON ROOSEVELT HILL, APPELLEE
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The trial court erred in dismissing the case and excluding the arresting officer's testimony as sanctions because the state was not responsible for the officer's failure to appear for deposition and less severe sanctions were not explored.
The appellee was charged with possession of cocaine. The arresting officer, the state's sole witness, failed to appear for three scheduled depositions…
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PER CURIAM.
The State of Florida appeals the trial court order that granted appellee’s motion to dismiss. We reverse.
Appellee was charged with possession of cocaine discovered after he was stopped for a traffic infraction. The officer who stopped appellee and subsequently arrested him for possession of cocaine is the state’s sole witness to connect appellee with possession of the cocaine.
The arresting officer’s name was furnished to appellee pursuant to discovery. On three separate occasions, appellee’s counsel attempted to depose the officer. The officer failed to appear on each occasion. Appellee moved to impose sanctions. At the hearing on the motion for sanctions, the officer appeared and offered various excuses for his previous failures to appear. The trial court found the officer’s explanations insufficient and excluded his testimony. When the state then announced that the officer was the sole witness to appel-lee’s alleged commission of the charged offense, the trial court granted appellee’s motion to dismiss. The sanctions imposed were too severe when other less severe sanctions were available and not utilized. There is no allegation or evidence of any kind that the state was in any way responsible for the officer’s failure to appear. Thus, this was not a discovery violation for which sanctions should be imposed against the state as a party pursuant to Florida Rule of Criminal Procedure 3.220(j)(l). The trial court did not attempt to use the sanction of contempt that is provided for use against a recalcitrant witness in Florida Rule of Criminal Procedure 3.220(d).
We therefore reverse both the order of dismissal and the order excluding the arresting officer’s testimony absent a showing that the less severe sanctions available would not have been successful in procuring the officer’s deposition and moving the case to an expeditious conclusion.
CAMPBELL, C.J., and FRANK and PARKER, JJ., concur.
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State v. Gonzalez, 695 So. 2d 1290 (Fla. 4th DCA 1997)…ases involving policemen, witnesses usually aligned with the government, courts have refused to exclude officers’ testimony for their mere failure to appear at discovery, depositions. State v. Golden, 571 So. 2d 49 (Fla. 3d DCA 1990); State v. Hill, 532 So. 2d 1303 (Fla. 2d DCA 1988). When asked to strike witnesses who fail to comply with discovery subpoenas, Florida courts have wielded that sanction with great caution. This is not a ease where the prosecution was in any way responsible for the witness’ failu…
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State v. Pope, 675 So. 2d 165 (Fla. 3d DCA 1996)…obedience of its witness by either prohibiting the recalcitrant witness from testifying at trial or dismissing the case altogether. State v. Golden, 571 So. 2d 49 (Fla. 3d DCA 1990); State v. Haynes, 557 So. 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 11…
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State v. Davis, 857 So. 2d 349 (Fla. 2d DCA 2003)…rime or defense. Id. In a case where the record does not reflect that lesser sanctions have been attempted or shown to be futile, an order excluding a witness’s testimony is a departure from the essential requirements of the law. Id.; State v. Hill, 532 So. 2d 1303, 1304 (Fla. 2d DCA 1988); State v. Farley, 788 So. 2d 338, 339 (Fla. 5th DCA 2001); State v. Gorrio, [*351] 726 So. 2d 832, 833 (Fla. 3d DCA 1999); State v. Gonzalez, 695 So. 2d 1290, 1292 (Fla. 4th DCA 1997). The circuit court’s order and the trans…