J.S., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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J.S., a juvenile, appeals his delinquency adjudication, challenging the trial court's denial of his motion for a second deposition of the victim after charges were amended from lewd and lascivious conduct to lewd and lascivious molestation. The court affirmed, holding that the trial court did not abuse its discretion in denying the motion because defense counsel had a full opportunity to depose the victim on the same underlying facts at the first deposition.
The trial court did not abuse its discretion in denying the motion for a second deposition. Because J.S.'s counsel had a full opportunity to question the victim on the same set of facts at the first deposition and the charge amendment involved closely related offenses with substantially overlapping factual elements, counsel's oversight in failing to ask certain questions at the first deposition does not constitute 'good cause shown' under Florida Rule of Juvenile Procedure 8.060(d)(2)(D).
[1] A trial court has discretion to grant or limit discovery.
[2] A person may not be deposed more than once except by consent of the parties or by court order upon a showing of good cause.
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Join FLexlaw to unlock all legal intelligence“In any case, no person shall be deposed more than once except by consent of the parties or by order of the court issued on good cause shown.”
The governing rule from Florida Rule of Juvenile Procedure 8.060(d)(2)(D) that establishes the standard for permitting additional depositions.
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Join FLexlaw to unlock all legal intelligenceJ.S. was charged with lewd and lascivious conduct against a minor victim. Before trial, the State amended the charges to lewd and lascivious molestati…
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The appellant, J.S., appeals his adjudication of delinquency. He argues that the trial court’s decision to deny his attorney’s motion to conduct a second deposition of the victim — after the State amended the charges from lewd and lascivious conduct to lewd and lascivious molestation— amounted to an abuse of discretion. Because J.S.’s counsel had a full opportunity to depose the victim on a closely related set of facts, we disagree and affirm.
Florida Rule of Juvenile Procedure 8.060(d)(2)(D) mirrors its adult counterpart and states that “[i]n any case, no person shall be deposed more than once except by consent of the parties or by order of the court issued on good cause shown.” Before trial and after J.S.’s first deposition of the victim, the State amended the petition for delinquency to reflect a change in its charges from lewd and lascivious conduct to lewd and lascivious molestation.
Section 800.04(6)(a), Florida Statutes states that a person who “[(Intentionally touches a person under 16 years of age in *911a lewd or lascivious manner” or solicits a person to “commit a lewd or lascivious act” commits “lewd or lascivious conduct.”
Section 800.04(5)(a), Florida Statutes states that “[a] person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age ... commits lewd or lascivious molestation.”
It is within a trial judge’s sound discretion as to the issue of granting or limiting discovery. Young Circle Garage LLC v. Koppel, 916 So.2d 22, 23 (Fla. 4th DCA 2005). At J.S.’s hearing on his motion to re-depose the victim, the State informed the trial court that at the victim’s first deposition, the victim was already asked (and she answered) questions about whether J.S., among other things, touched her breasts, buttocks, or genitals or the clothing covering them. J.S.’s lawyer attended and participated in this deposition and to defense counsel’s credit, admitted that “these were areas that I should have covered and I didn’t.” Given the particular facts of this case, defense counsel’s oversight is not the sort of “good cause shown” to subject the victim to a second deposition. The trial court was well within its discretion to deny the motion and thus, J.S.’s adjudication as a delinquent child is affirmed.
Affirmed.
GROSS, C.J., and WARNER, J., concur.