THE STATE OF FLORIDA, PETITIONER,
v.
ALYKHAN BANKS, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida Supreme Court's Third District Court of Appeal granted the State's petition for writ of certiorari, quashing a trial court order that excluded a witness's testimony because the witness failed to appear for a discovery deposition. The court held that the State is not responsible for producing the State's own witnesses for defense-requested depositions, and excluding testimony as a sanction for a witness's non-appearance improperly punishes the prosecution rather than the responsible party.
The trial court abused its discretion in excluding the witness's testimony. The State has no duty to produce its own witnesses for discovery depositions subpoenaed by the defense, so it was error to exclude the testimony based on the witness's failure to appear. Proper sanctions for a witness's failure to obey a subpoena should be imposed on the witness (such as contempt), not by excluding testimony and thereby punishing the prosecution.
[1] A trial court abuses its discretion by excluding a witness's testimony when the witness's failure to appear for deposition is not the fault of the State.
[2] The State is not responsible for producing its witnesses for deposition when subpoenaed by the defendant.
Previewing 2 of 5 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 court was punishing the state's attorney's office, and thereby the public for the activities of the witness; sanctions, if any, should have been imposed upon the 'wrongdoer' who apparently was the witness.”
Establishes the core principle that sanctions for witness non-appearance should target the witness, not the prosecution
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMichael Mulligan, the victim and a prosecution witness, failed to appear at least twice for a discovery deposition that had been subpoenaed by the def…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Sanctions For Discovery Violations cases and more on FLexlaw
PEARSON, Judge.
The State of Florida, as petitioner, has brought this petition for writ of certiorari to review an order of the trial court excluding the testimony of a witness who repeatedly failed to appear for discovery deposition. The order stated that “ . the defendants’ Motion to Preclude is hereby granted only as to Michael Mulligan and it is further ordered that Michael Mulligan may not be presented as a witness in the trial of the above styled cause.” The order recited the fact that Mulligan, who was the victim, at least twice failed to appear, and that:
“5. The State, by and through Assistant State Attorney David I. Gilbert, is in no way responsible for the failure of Michael Mulligan to appear for the deposition.”
In State v. DeVille, 258 So. 2d 492 (Fla.3d DCA 1972), we considered a case in which the trial court had excluded the testimony of a witness and we found that the court had abused its discretion in excluding such testimony. We there held:
“We therefore express the view that the trial court abused its discretion in refusing to vacate its prior oral order of July 26, 1971, excluding the testimony of the witness. Rule 3.220(f) RCPr provides that, ‘ . . .A person who refuses to obey a subpoena served upon him [under this discovery rule] may be adjudged in contempt of the court from which the subpoena issued.’ The court was punishing the state’s attorney’s office, and thereby the public for the activities of the witness; sanctions, if any, should have been imposed upon the ‘wrongdoer’ who apparently was the witness.”
Subsequently, in State v. Roig, 305 So. 2d 836 (Fla.3d DCA 1974), we considered a case in which the trial court dismissed an information because the prosecution was unable to proceed without the testimony of witnesses. The testimony had been excluded because the witnesses failed to appear for deposition after being subpoenaed by the defendant. In that case, we held:
“The sole question before this court is whether the prosecution is responsible to produce the state’s witnesses for deposition pursuant to being subpoenaed by the defendant. We hold that it is not the responsibility of the state to produce state witnesses subpoenaed by the defendant for discovery purposes. Therefore, the court erred in excluding the witnesses’ testimony and dismissing the cause as a result thereof. Proper sanctions may be imposed by the court pursuant to appropriate rules of procedure. See State v. DeVille, Fla.App.1972, 258 So. 2d 492; Rule 3.220, CrPR; Rule 1.380, RCP.”
In the case now before us, it affirmatively appears that the only subpoena issued for the witness was subsequently quashed by order of the court. The State volunteered on two occasions to present the witness for deposition but was unable to do so. Inasmuch as it is not the State’s duty to produce the witness for discovery, it was error to enter an order excluding the testimony at time of trial.
It should be observed that the court, proceeding under the Florida Rules of Criminal Procedure, may continue a case where discovery is not completed through no fault of the defendant. See State ex rel. Gerstein v. The Hon. N. Joseph Durant, Jr., 348 So. 2d 405 (Fla.3d DCA 1977), filed July 26, 1977. In the event it appears that the discovery is not obtained even after the issuance of the subpoena for the reluctant witness, then the defendant may not be required to go to trial without the discovery and the speedy trial rule may ultimately result in the discharge of the defendant.
Aside from the remedy of the defendant where he is not afforded proper discovery, there are sanctions which may be imposed upon a witness for his failure to obey a subpoena. In a proper case, contempt of court is an appropriate remedy. See State v. DeVille, 258 So. 2d 492 (Fla.3d DCA 1972). For the reasons stated, the writ of certiorari is granted and the order excluding the testimony of the witness is quashed.
It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
-
State v. Brown, 527 So. 2d 209 (Fla. 3d DCA 1988)…86 (Fla.1978). The defendant attempts to invoke a purported exception to this rule set forth in dicta in such cases as State v. Del Gaudio, 445 So. 2d 605, 611-12 (Fla. 3d DCA 1984), pet. for review denied, 453 So. 2d 45 (Fla.1984); State v. Banks, 349 So. 2d 736 (Fla. 3d DCA 1977); and State ex rel. Gerstein v. Durant, 348 So. 2d 405 (Fla. 3d DCA 1977), under which a continuance sought by the defense may nevertheless be “charged” to the prosecution on the ground that it resulted from a state discovery viola…
-
State v. Mesa, 395 So. 2d 242 (Fla. 3d DCA 1981)…es for deposition or trial. State v. Merritt, 394 So. 2d 531 (Fla. 3d DCA 1981); State v. Ashley, 393 So. 2d 1168 (Fla. 3d DCA 1981) (1981); Knight v. State, 373 So. 2d 52 (Fla. 4th DCA 1979), cert. denied, 385 So. 2d 761 (Fla.1980); State v. Banks, 349 So. 2d 736 (Fla. 3d DCA 1977); State ex rel. Gerstein v. Durant, 348 So. 2d 405 (Fla. 3d DCA 1977); State v. Roig, 305 So. 2d 836 (Fla. 3d DCA 1974); State v. Velasquez, 305 So. 2d 837 (Fla. 3d DCA 1974), cert. denied, 315 So. 2d 196 (Fla.1975). A fortiori the…
-
The Honorable Jonathan T. Colby v. McNEILL, 595 So. 2d 115 (Fla. 3d DCA 1992)…l. 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 So. 2d 405 (Fla. 3d DCA 1977).…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Eutansio Antolin Roig, 305 So. 2d 836 (Fla. 3d DCA 1974)
- State of Fla. ex rel. Richard E. Gerstein v. The Honorable N. Joseph Durant, Jr., 348 So. 2d 405 (Fla. 3d DCA 1977)
- State v. DeVILLE, 258 So. 2d 492 (Fla. 3d DCA 1972)