Brown v. State, 64247
| Citation | 10 Fla. L. Weekly 263,471 So.2d 6 |
| Decision Date | 02 May 1985 |
| Docket Number | No. 64247,64247 |
| Parties | 10 Fla. L. Weekly 263 Anthony Siliah BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Michael E. Allen, Public Defender and Michael J. Minerva, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
Anthony Brown appeals his conviction of first-degree felony murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1) of the state constitution. Because of error, we reverse Brown's conviction and sentence and remand for a new trial.
Prior to trial the state petitioned the trial court, pursuant to Florida Rule of Criminal Procedure 3.190(j), to take a deposition to perpetuate the testimony of one of the state's witnesses. This witness, a sheriff's deputy, would be unavailable at the trial due to being outside the State of Florida. The court granted the motion, and the state noticed defense counsel of the deposition.
Rule 3.190(j) provides in part:
(3) If the deposition is taken on the application of the State, the defendant and his attorney shall be given reasonable notice of the time and place set for the deposition. The officer having custody of the defendant shall be notified of the time and place and shall produce the defendant at the examination and keep him in the presence of the witness during the examination.
Although defense counsel received notice and attended the deposition, Brown, himself, received no such notice. Moreover, Brown's jailers did not take him to the deposition. It therefore appears that the state failed to comply with the rule governing taking depositions to perpetuate testimony. See State v. Basiliere, 353 So.2d 820 (Fla.1977); State v. Dolen, 390 So.2d 407 (Fla. 5th DCA 1980).
The state now argues that Brown waived his right to be present at the deposition because he failed to object to using the deposition at trial on the basis of his absence at its taking. We find, however, that the state's failure to follow rule 3.190(j)(3) created fundamental error by depriving Brown of his constitutional right to confront and cross-examine the witnesses against him. There is no way to correct this error, and we must grant Brown a new trial. Because Brown is receiving another trial, we decline to discuss the other points raised on appeal.
We therefore reverse Brown's conviction and sentence and remand for a new trial.
It is so ordered.
Although Florida Rule of Criminal Procedure 3.190(j) provides that the defendant be notified and be present at the deposition, admission of a deposition absent the fulfillment of these requirements is...
To continue reading
Request your trial
-
In re Midway Airlines, Inc.
... ... PBC is a county within the state of Florida. Both prior and subsequent to the Debtor filing its Chapter 11 petition, the Debtor and ... ...
-
American Home Assur. v. NAT. RR CORP.
... ... Crist, Jr., Attorney General, and the State of Florida, as Amicus Curiae ... PER CURIAM ... We have for ... ...
-
Rodriguez v. State
...United States Constitution and article I, section 16 of the Florida Constitution. State v. Clark, slip op. at 2-3; see also Brown v. State, 471 So.2d 6 (Fla.1985) (State's failure to notify defendant of deposition and produce him at the deposition, in accordance with rule 3.190(j)(3), depri......
-
Conner v. State
...the critical importance of a defendant's "constitutional right to confront and cross-examine witnesses against him." Brown v. State, 471 So.2d 6, 7 (Fla.1985). Accordingly, we have even found that the State's failure to comply with the requirement to notify the defendant before taking a dep......