STATE OF FLORIDA, PETITIONER,
v.
KENNETH DAVIS, RESPONDENT
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A pre-trial order excluding critical testimony, without considering lesser sanctions, departs from the essential requirements of law and is reviewable by certiorari.
[1] A pre-trial order excluding evidence that substantially impairs the state's ability to prosecute its case is subject to certiorari review.
[2] Exclusion of a witness's testimony should be a last resort, reserved for extreme or aggravated circumstances, especially when the testimony is critical to the case.
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Join FLexlaw to unlock all legal intelligenceThe State petitioned for certiorari review of an order excluding the victim's testimony in a criminal trial. The victim had failed to appear for two d…
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WALLACE, Judge.
The petitioner, the State of Florida, seeks certiorari review of a circuit court order that excludes the alleged victim’s testimony at the trial of the respondent, Kenneth Davis, on a charge of aggravated battery with a deadly weapon in violation of section 784.045(l)(a)(2), Florida Statutes (2002).
We agree with the State that the order departs from the essential requirements of the law.
Therefore, we grant the petition and quash the circuit court’s order.
On January 23, 2003, Davis filed a petition for an order to show cause directed to the victim of the alleged offense for his failure to appear at a deposition scheduled on January 22, 2003. The victim had been duly served with a subpoena to appear at the deposition.
The circuit court granted Davis’ petition and ordered the victim to appear before the court on February 19, 2003, to show cause why he should not be adjudged in contempt for failure to obey the subpoena. In the meantime, Davis scheduled a second deposition of the victim; again, the victim did not appear. At a pretrial hearing held on February 3, 2003, the circuit court granted Davis’ oral motion to exclude the victim’s testimony at trial. More than two weeks before the date of the previously scheduled hearing on the order to show cause, the circuit court entered its order excluding the victim’s testimony at trial.
The Supreme Court of Florida has held that “if the requirements permitting certiorari jurisdiction otherwise exist, a pre-trial order excluding evidence which has the effect of substantially impairing the ability of the state to prosecute its case is subject to certiorari review.” State v. Pettis, 520 So. 2d 250, 253 (Fla.1988) (quoting State v. Steinbrecher, 409 So. 2d 510, 511 (Fla. 3d DCA 1982)). Although a pretrial order may qualify for certiorari, the writ should be issued only when “there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id. at 254 (quoting Combs v. State, 436 So. 2d 93, 96 (Fla.1983)).
This court has previously held that the exclusion of a witness’s testimony “should be a last resort and reserved for extreme or aggravated circumstances, particularly when the excluded testimony relates to critical issues or facts.” State v. Schwartz, 605 So. 2d 1000, 1001 (Fla. 2d DCA 1992) (quoting Austin v. State, 461 So. 2d 1380, 1381 (Fla. 1st DCA 1984)).
Adherence to this standard is particularly important when the excluded person is the sole witness or is essential to prove the elements of the crime 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, 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 transcript of the pretrial hearing in this case do not reflect any consideration by the court of a less severe sanction. Indeed, when the circuit court entered the order under review, the victim was already ordered to appear before the court at a later date to show cause why he should not be held in contempt for his failure to appear at the first scheduled deposition.
Therefore, the circuit court’s order excluding the victim’s testimony at trial departed from the essential requirements of the law.
The facts of this case demonstrate that the departure has resulted in a material injury that will affect the remainder of the proceeding. See State v. Cecil, 533 So. 2d 884 (Fla. 3d DCA 1988). The victim of the alleged battery is the most appropriate witness to testify to the facts of the crime charged, particularly because the record indicates that the only other witnesses to the event were Davis and his employer, a man who was in a fight with the victim when Davis allegedly committed the aggravated battery. Because the victim’s testimony is essential to the prosecution of this case, the circuit court’s order results in a material injury that affects the State’s ability to prosecute Davis.
Because the State has established its entitlement to the writ, we grant the petition for writ of certiorari, quash the circuit court’s order excluding the testimony of the victim at trial, and remand this case to the circuit court for further proceedings.
Petition for writ of certiorari granted.
ALTENBERND, C.J., and CANADY, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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State v. Storer, 920 So. 2d 754 (Fla. 2d DCA 2006)…opinions granting relief to the State have come in the context of challenges to orders that prevented the State from presenting evidence that was critical to its case. See, e.g., State v. Richman, 861 So. 2d 1195 (Fla. 2d DCA 2003); State v. Davis, 857 So. 2d 349 (Fla. 2d DCA 2003); State v. Smith, 586 So. 2d 1237 (Fla. 2d DCA 1991); State v. Barber, 783 So. 2d 293 (Fla. 5th DCA 2001). On at least two occasions, the State has successfully petitioned to prevent the defense from introducing evidence. In each…
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State v. Styles, 962 So. 2d 1031 (Fla. 3d DCA 2007)…; State v. Richards, 843 So. 2d 962, 968 (Fla. 3d DCA 2003). “ ‘[A] pre-trial order excluding evidence which has the effect of substantially impairing the ability of the state to prosecute its case is subject to certiorari review.’ ” State v. Davis, 857 So. 2d 349, 350 (Fla. 2d DCA 2003)(quoting Pettis, 520 So. 2d at 253). The improper suppression of an out-of-court identification, especially where an in-court identification is not possible, causes material injury to the State’s prosecution. See State v. Ceci…
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State v. Torry M. Jones, 30 So. 3d 619 (Fla. 2d DCA 2010)…ify for certiorari, the writ should be issued only when “there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id. at 254 (quoting Combs v. State, 436 So. 2d 93, 96 (Fla.1983)). State v. Davis, 857 So. 2d 349, 350 (Fla. 2d DCA 2003). In other words, “[t]o obtain common law certiorari relief, a petitioner must show that there has been a departure from the essential requirements of law that causes material and irreparable harm.” Gonzalez v. State, 15 So. 3…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Combs v. State, 436 So. 2d 93 (Fla. 1983)
- State v. Pettis, 520 So. 2d 250 (Fla. 1988)
- State v. Steinbrecher, 409 So. 2d 510 (Fla. 3d DCA 1982)
- Austin v. State, 461 So. 2d 1380 (Fla. 1st DCA 1984)
- State v. Cecil, 533 So. 2d 884 (Fla. 3d DCA 1988)
- State v. Schwartz, 605 So. 2d 1000 (Fla. 2d DCA 1992)
- State v. Gonzalez, 695 So. 2d 1290 (Fla. 4th DCA 1997)
- State v. Farley, 788 So. 2d 338 (Fla. 5th DCA 2001)
- State v. Gorrio, 726 So. 2d 832 (Fla. 3d DCA 1999)
- State v. Dron Roosevelt Hill, 532 So. 2d 1303 (Fla. 2d DCA 1988)