STATE OF FLORIDA, PETITIONER,
v.
DAVID NEMETH, RESPONDENT
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The State sought certiorari review of a trial court order that granted the defendant's motion in limine to exclude testimony from a key prosecution witness regarding the ownership and timing of stolen property. The appellate court found the exclusion order constituted a departure from essential legal requirements and granted the State's petition, quashing the order and remanding for further proceedings.
The trial court's order granting the motion in limine and excluding the witness's testimony constituted an abuse of discretion and departure from essential requirements of law. The court held that where a witness is competent to testify and the defendant is fully afforded the right of confrontation, the witness's testimony should not be stricken even if shown to be unreliable or inaccurate; instead, the weight and credibility of the testimony should be determined solely by the trier of fact.
[1] A trial court's order precluding a witness's testimony, which materially affects the state's ability to prosecute, may be reviewed by certiorari.
[2] A harsh sanction like precluding a witness's testimony should be reserved for instances of extreme misconduct not remediable by less drastic means.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Where a witness is competent to testify, and the defendant is fully afforded the right of confrontation, the testimony of that witness should not be stricken even where shown to be unreliable or inaccurate.”
Establishes the core legal principle that competent witnesses' testimony cannot be excluded merely because it is unreliable or inconsistent; credibility is for the trier of fact.
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Join FLexlaw to unlock all legal intelligenceDavid Nemeth was charged with dealing in stolen property—specifically, selling seven boxes of aluminum panels belonging to Racetrack Oil Company on Se…
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PER CURIAM.
The state seeks certiorari review of a circuit court order entered in the ongoing criminal prosecution of respondent David Nemeth. We find that the order constitutes a departure from the essential requirements of law which materially affects the state’s ability to go forward with the prosecution. See State v. Pettis, 520 So. 2d 250 (Fla.1988). Accordingly, we grant the petition.
Nemeth is charged with dealing in stolen property. The affidavit complaint alleges that on September 29, 1989, he sold seven boxes of aluminum panels belonging to the Racetrack Oil Company “under circumstances that would induce a reasonable man to know that the property was stolen.” A principal state’s witness is William Roberson, who was employed by Racetrack Oil at the time of the incident. On deposition Mr. Roberson stated that he reported the aluminum stolen “within a day or two” of its disappearance. The theft was reported October 6. This at least suggests that the crime could not have occurred on the date specified in the bill of particulars.
In view of this discrepancy, Nemeth apparently considered a motion in limine to limit or preclude Roberson’s testimony. By the scheduled hearing time, however, the witness apparently had reconsidered his earlier testimony and was willing to state that the aluminum could have been stolen “a week or two” before it was discovered. As a result of this concession, Nemeth indicated he would abandon the motion in limine, preferring to impeach the witness on the basis of his deposition.
Nevertheless, the trial court granted the motion, thereby precluding the state from “presenting the testimony of William Robertson [sic] as it relates to the ownership of [the] property sold by the defendant between September 22, 1989, and September 28, 1989.” This decision, which is tantamount to excluding the witness or striking his testimony, is not supported by the facts of this case. Such a harsh sanction should be reserved for instances of extreme misconduct not remediable by other, less drastic means. See LoBue v. Travelers Ins. Co., 388 So. 2d 1349 (Fla. 4th DCA 1980), rev. denied, 397 So. 2d 777 (Fla.1981).
Where a witness is competent to testify, and the defendant is fully afforded the right of confrontation, the testimony of that witness should not be stricken even where shown to be unreliable or inaccurate. Carter v. State, 68 Fla. 143, 66 So. 1000 (1914); United States v. Prieto, 505 F. 2d 8 (5th Cir.1974).
Perhaps a different result would be required upon proof of deliberate prosecutorial suppression or some other form of tampering; see Castillo v. United States, 409 F. 2d 762 (5th Cir.1969); but whatever the source of Mr. Roberson’s apparent memory lapse, the weight to be given his testimony should be the sole province of the trier of fact. Staggers v. State, 258 So. 2d 461 (Fla. 1st DCA 1972).
The petition for writ of certiorari is granted, the order granting Nemeth’s motion in limine is quashed, and this case is remanded to the circuit court for further proceedings consistent with this opinion.
SCHEB, A.C.J., and HALL and ALTENBERND, JJ., concur.
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State v. Johnston, 743 So. 2d 22 (Fla. 2d DCA 1999)…).1 We have certiorari jurisdiction to consider the State’s complaint that its ability to prosecute has been compromised by the trial court’s limitation of the evidence it may present. See State v. Pettis, 520 So. 2d 250 (Fla.1988); State v. Nemeth, 581 So. 2d 627 (Fla. 2d DCA 1991). We grant the State’s petition. In his pretrial motion, Johnston moved the trial court to bar the admission of victim impact evidence during the State’s presentation to the jury during the penalty phase of this prosecution, if it…
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State v. Gerry, 855 So. 2d 157 (Fla. 5th DCA 2003)…ony, which the state alleges will relate an account of the shooting consistent with Allen’s account, would rebut such impeachment and strengthen the state’s case. 538 So. 2d at 1295. We also find instructive the court’s decision in State v. Nemeth, 581 So. 2d 627 (Fla. 2d DCA 1991). In that case, the trial court granted the defendant’s motion in limine to exclude the testimony of a state witness on the grounds that because the witness had changed his testimony, his testimony was unworthy of belief. The state…
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Bradley v. Cooper, 40 So. 3d 846 (Fla. 3d DCA 2010)…euschner, 829 So. 2d 943, 944 (Fla. 1st DCA 2002) (finding the trial court violated clearly established principle of law when excluding testimony of State’s key witness upon a determination the testimony was “not worthy of belief’); State v. Nemeth, 581 So. 2d 627, 629 (Fla. 2d DCA 1991) (“Where a witness is competent to testify, and the defendant is fully afforded the right of confrontation, the testimony of that witness should not be stricken even where shown to be unreliable or inaccurate.”); see also Tamp…
Authorities Cited
- State v. Pettis, 520 So. 2d 250 (Fla. 1988)
- LoBUE v. Travelers Ins. Co., 388 So. 2d 1349 (Fla. 4th DCA 1980)
- United States v. Prieto, 505 F.2d 8 (5th Cir. 1974)
- Carter v. State, 68 Fla. 143 (Fla. 1914)
- Castillo v. United States, 409 F.2d 762 (5th Cir. 1969)
- Staggers v. State, 258 So. 2d 461 (Fla. 1st DCA 1972)