Barnett v. State, No. AR-183

CourtCourt of Appeal of Florida (US)
Writing for the CourtZEHMER; ZEHMER
Citation444 So.2d 967
PartiesLeon R. BARNETT, Appellant, v. STATE of Florida, Appellee.
Decision Date02 December 1983
Docket NumberNo. AR-183

Page 967

444 So.2d 967
Leon R. BARNETT, Appellant,
v.
STATE of Florida, Appellee.
No. AR-183.
District Court of Appeal of Florida,
First District.
Dec. 2, 1983.
Rehearing Denied Feb. 13, 1984.

Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

The issue in this case is whether the trial court erred in allowing the prosecutor to

Page 968

read into evidence a series of questions and answers from a criminal discovery deposition. Since the questions and answers did not properly impeach the witness, we reverse.

Appellant, Leon R. Barnett, was found guilty of grand theft of travelers checks having a value exceeding one hundred dollars. At his jury trial on January 25, 1983, the state called as a witness one Gilchrest. When asked if she went to Mobile, Alabama, with the defendant and two other persons in July 1982, she answered "No." At that point, the prosecutor pulled out a discovery deposition of the witness taken on November 16, 1982, read certain questions and answers from the deposition, and asked Gilchrest if she recalled being asked those questions and giving those answers. Gilchrest said she did not remember the questions and answers. The prosecutor continued to read her deposition testimony concerning different events on the trip to Mobile, and the witness consistently maintained that she did not recall the questions or answers. Gilchrest admitted she made a trip to Mobile with a friend (not defendant) and remembered attending her deposition in November, but could not remember what happened. The state moved that Gilchrest be deemed a court witness, and such motion was granted. The court then denied the prosecutor's motion to introduce the deposition into evidence; nevertheless, over defendant's objection, the court permitted the prosecutor to continue reading a number of questions and answers into evidence, asking the witness if she recalled each question and answer, and every time receiving the same denial.

The court did not explain its reason for permitting the deposition to be used in this manner. Obviously it was not useful to refresh the witness's recollection. Nor were the questions and answers properly read as an effort to impeach the witness as no predicate for impeachment was laid. The witness professed to have been under the influence of drugs on the trip to Mobile, as well as when the deposition was taken, and she did not testify at trial to any substantive facts concerning the trip. The import of her testimony was simply, "I do not remember."

We can only conclude that the deposition testimony was received in evidence as substantive proof of the matters covered therein, and it appears to have been given such effect by the jury. The state's brief recognizes this to be the case, as it defends the trial court's ruling by...

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9 practice notes
  • State v. Skolar, No. 96-2143
    • United States
    • Court of Appeal of Florida (US)
    • May 2, 1997
    ...5th DCA 1990), quashed on different grounds, 614 So.2d 453 (1993); Campos v. State, 489 So.2d 1238 (Fla. 3d DCA 1986); Barnett v. State, 444 So.2d 967 (Fla. 1st DCA 1983); Terrell v. State, 407 So.2d 1039 (Fla. 1st DCA 1981). Although the court may disagree with the rule and find it overly ......
  • Smith v. State, No. 91-1287
    • United States
    • Court of Appeal of Florida (US)
    • September 4, 1992
    ...(Fla.1981) (holding that discovery depositions may not be used as substantive evidence in criminal trials). And see Barnett v. State, 444 So.2d 967 (Fla. 1st DCA 1983); Clark v. State, 572 So.2d 929 (Fla. 5th DCA 1990); Campos v. State, 489 So.2d 1238 (Fla. 3d DCA 1986). We acknowledge that......
  • Yost v. American Nat. Bank, Nos. 89-355
    • United States
    • Court of Appeal of Florida (US)
    • October 16, 1990
    ...cases where a dispute over a contract exists that all elements of the dispute be tried and resolved at one time." City of Mascotte, 444 So.2d at 967. The second appeal was taken from the order granting the motion to dismiss appellants' amended counterclaim. However, the order was not f......
  • Jones v. State, No. 1D00-2878.
    • United States
    • Court of Appeal of Florida (US)
    • August 3, 2001
    ...1st DCA 2000), Lee v. State, 745 So.2d 1036 (Fla. 1st DCA 1999), Moore v. State, 537 So.2d 693 (Fla. 1st DCA 1989), and Barnett v. State, 444 So.2d 967 (Fla. 1st DCA 1983), the court said that such an order is reviewed by the abuse of discretion standard. For the reasons that follow, we adh......
  • Request a trial to view additional results
9 cases
  • State v. Skolar, No. 96-2143
    • United States
    • Court of Appeal of Florida (US)
    • May 2, 1997
    ...5th DCA 1990), quashed on different grounds, 614 So.2d 453 (1993); Campos v. State, 489 So.2d 1238 (Fla. 3d DCA 1986); Barnett v. State, 444 So.2d 967 (Fla. 1st DCA 1983); Terrell v. State, 407 So.2d 1039 (Fla. 1st DCA 1981). Although the court may disagree with the rule and find it overly ......
  • Smith v. State, No. 91-1287
    • United States
    • Court of Appeal of Florida (US)
    • September 4, 1992
    ...(Fla.1981) (holding that discovery depositions may not be used as substantive evidence in criminal trials). And see Barnett v. State, 444 So.2d 967 (Fla. 1st DCA 1983); Clark v. State, 572 So.2d 929 (Fla. 5th DCA 1990); Campos v. State, 489 So.2d 1238 (Fla. 3d DCA 1986). We acknowledge that......
  • Yost v. American Nat. Bank, Nos. 89-355
    • United States
    • Court of Appeal of Florida (US)
    • October 16, 1990
    ...in cases where a dispute over a contract exists that all elements of the dispute be tried and resolved at one time." City of Mascotte, 444 So.2d at 967. The second appeal was taken from the order granting the motion to dismiss appellants' amended counterclaim. However, the order was not fin......
  • Jones v. State, No. 1D00-2878.
    • United States
    • Court of Appeal of Florida (US)
    • August 3, 2001
    ...1st DCA 2000), Lee v. State, 745 So.2d 1036 (Fla. 1st DCA 1999), Moore v. State, 537 So.2d 693 (Fla. 1st DCA 1989), and Barnett v. State, 444 So.2d 967 (Fla. 1st DCA 1983), the court said that such an order is reviewed by the abuse of discretion standard. For the reasons that follow, we adh......
  • Request a trial to view additional results

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