THE STATE OF FLORIDA, PETITIONER,
v.
CARL GOLDEN, RONALD BARNARD, AND ROY JONES, RESPONDENTS
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The trial court erred in prohibiting the state from presenting a police officer's testimony as a sanction for the officer's discovery violation.
[1] A trial court errs by sanctioning the state for a discovery violation caused by a witness's conduct, not the state's.
[2] A witness's refusal to answer deposition questions and subsequent contempt of court does not constitute state action for which the state can be held responsible.
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Join FLexlaw to unlock all legal intelligenceA police officer refused to answer deposition questions from defense attorneys and was held in contempt. The trial court then excluded the officer's t…
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PER CURIAM.
The state seeks certiorari review of a pre-trial order prohibiting the state from presenting the testimony of a certain police officer in a case where the defendants are charged with selling cocaine within 1,000 feet of a school yard in violation of section 893.13(l)(e), Florida Statutes (1989). We have jurisdiction. Art. V, § 4(b)(3) Fla. Const.; Fla.R.App.P. 9.030. See State v. Bowers, 422 So. 2d 9 (Fla. 2d DCA 1982).
At his deposition, the officer involved answered questions posed by one defense attorney but refused to answer the questions of other defense attorneys and left the room. After a show cause hearing which the officer failed to attend, the trial judge held the officer in contempt of court and gave him one week to purge the contempt. The officer then failed to appear at a hearing scheduled to give him an opportunity to purge himself of the contempt. At that time the judge, over the state’s objection, granted a motion to exclude the officer’s testimony.
In granting the defense motion to exclude the officer’s testimony, the trial judge erroneously sanctioned the state for a discovery violation which was caused by the witness, not the state. As this court held in Granade v. Ader, 530 So. 2d 1050, 1051 (Fla. 3d DCA), review denied, 541 So. 2d 1172 (Fla.1988), “The officer’s conduct as a witness [] does not amount to state action.” Thus, the state cannot be held responsible in this case for the officer’s discovery violation.
We note that the trial court is not precluded from (a) ordering the officer’s arrest, see Fla.R.Crim.P. 3.840(a)(3); (b) imposing sentence on the officer pursuant to its finding of contempt, see Fla.R.Crim.P. 3.840(a)(7); and (c) continuing the trial until the officer completes his deposition without charging the defendants with a trial delay for speedy trial purposes. State v. Haynes, 557 So. 2d 913 (Fla. 3d DCA 1990).
Accordingly, we grant the petition for writ of certiorari, vacate the order excluding the officer as a witness, and remand the cause for further proceedings consistent with this opinion.
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The Honorable Jonathan T. Colby v. McNEILL, 595 So. 2d 115 (Fla. 3d DCA 1992)…, 530 So. 2d 1050 (Fla. 3d DCA), rev. denied, 541 So. 2d 1172 (Fla.1988); State v. Brown, 527 So. 2d 209 (Fla. 3d DCA), rev. denied, 534 So. 2d 398 (Fla.1988); State ex rel. Betancourt v. Klein, 354 So. 2d 392 (Fla. 3d DCA 1978). . State v. Golden, 571 So. 2d 49, 49-50 (Fla. 3d DCA 1990); State v. Haynes, 557 So. 2d 913, 914 (Fla. 3d DCA 1990); Stephens v. State, 359 So. 2d 21, 22 (Fla. 3d DCA 1978); State v. Banks, 349 So. 2d 736, 737 (Fla. 3d DCA 1977). . See, e.g., State ex rel. Gerstein v. Durant, 348…
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State v. Gonzalez, 695 So. 2d 1290 (Fla. 4th DCA 1997)…[a] defendant’s discovery or at trial.” Even in cases 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 prosecutio…
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State v. Pope, 675 So. 2d 165 (Fla. 3d DCA 1996)…court and others have held that the trial court commits error when it sanctions the State for the disobedience 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 de…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Granade v. Honorable Marshall H. Ader, 530 So. 2d 1050 (Fla. 3d DCA 1988)
- State v. Haynes, 557 So. 2d 913 (Fla. 3d DCA 1990)
- State v. Bowers, 422 So. 2d 9 (Fla. 2d DCA 1982)