STATE OF FLORIDA, PETITIONER,
v.
JOHN PATRICK MCNALLY, RESPONDENT
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Florida's Second District Court of Appeal reversed a trial court order requiring the State to reimburse a criminal defendant's attorney for travel and subsistence expenses related to a deposition. The court held that once the State abandoned its motion to perpetuate testimony and informed defense counsel it no longer desired the deposition, the State had no obligation to pay the defendant's attendance expenses.
The defendant's attorney is not entitled to reimbursement for travel and subsistence expenses where the State abandoned its motion to perpetuate testimony and informed defense counsel it no longer desired the deposition before any expenses were incurred. The State has no liability for such expenses once it makes attendance unnecessary.
[1] A party is not entitled to reimbursement for expenses incurred in attending a deposition if the opposing party notified them that the deposition was no longer desired bef…
[2] A trial court departs from the essential requirements of law when ordering reimbursement for deposition expenses under RCrP 3.190(j)(3) under circumstances where the part…
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“the petitioner made that attendance unnecessary before any expenses were incurred by respondent”
Establishes that the State's abandonment of the deposition before expenses were incurred relieved it of reimbursement obligation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA criminal case against McNally was scheduled for trial on August 12, 1975, in Lee County. The State had moved to perpetuate testimony of Dr. Barnard,…
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SCHEB, Judge.
Petitioner/State challenges an order directing it to reimburse a defendant’s attorney under RCrP 3.190(j)(3) for expenses of travel and subsistence for attendance at the taking of a deposition designed to perpetuate testimony. Specifically, the issue here is whether the respondent’s attorney has this entitlement where after the State moved to perpetuate the testimony of a potential witness, it informed defense counsel that it abandoned its desire to depose the witness.
A criminal case pending against respondent/John Patrick McNally was set for trial on August 12, 1975, in Lee Coun ty. The State had moved to perpetuate the testimony of Dr. Barnard, a potential witness, residing in Gainesville. Four days prior to the scheduled trial, this court stayed the trial pending determination of the State’s petition for a writ of certiorari. Counsel representing the petitioner and the respondent were each in Lakeland at this court, and once the trial was stayed, petitioner then and there informed the respondent’s counsel that the State no longer desired to take the scheduled deposition. Respondent’s counsel, however, announced he would, nevertheless, proceed as scheduled. Having been so informed, counsel for the petitioner likewise proceeded to Gainesville where Dr. Barnard’s deposition was taken as originally scheduled.
Respondent s counsel moved for ' reimbursement, pursuant to RCrP 3.190(j)(3), for meals, travel, out of office expense, and court reporter’s expenses. The trial judge, upon hearing, ordered the Office of the State Attorney of the Twentieth Judicial Circuit to “pay from the proper fund . . . $100 to . attorney for the defendant” as reimbursement for travel and meals. While we find no authority for the petitioner’s direct appeal, we accept it as a petition for a writ of certiorari1 and hold that the trial judge, in directing reimbursement, departed from the essential requirements of the law.
Respondent’s counsel admits that he and petitioner’s counsel proceeded to Gaines-ville and took the deposition at his insistence. He contends, however, this was justified inasmuch as he had made necessary plans to proceed and since both counsel had already traveled to Lakeland from Ft. Myers, it was reasonable to complete the deposition.
We cannot agree with the respondent. Counsel for the petitioner and the respondent arrived in Lakeland at this court pursuant to the petitioner’s motion to continue the trial. It cannot be said that this trip was occasioned by the petitioner’s motion to perpetuate Dr. Barnard’s testimony. The rule provides reimbursement for attendance at the deposition, but there is no liability upon the State to pay the respondent’s attorney for expenses of travel and subsistence here since the petitioner made that attendance unnecessary before any expenses were incurred by respondent.
Accordingly, certiorari is granted and the order entered is quashed.
HOBSON, A. C. J., and GRIMES, J., concur. . State v. Caivano, Fla.App.2d 1974, 304 So. 2d 139; State v. Smith, Fla.1972, 260 So. 2d 489.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Smith, 260 So. 2d 489 (Fla. 1972)
- Hunter v. State, 304 So. 2d 139 (Fla. 2d DCA 1974)
- State v. Caivano, 304 So. 2d 139 (Fla. 2d DCA 1974)