Cousino v. State, 85-1760

• Decision Date: 07 August 1985
• Docket Number: 85-1758,No. 85-1760,85-1760
• Parties: 10 Fla. L. Weekly 2087 David COUSINO and Sharon Cousino, as next friends and natural guardians of the minor, Justin Cousino, Petitioners, v. The STATE of Florida, Francisco Fuster Escalona, a/k/a Frank Fuster, Ileana Fuster, and the Honorable Robert Newman, Respondents.
• Court: Florida District Court of Appeals

Page 777

473 So.2d 777

10 Fla. L. Weekly 2087

David COUSINO and Sharon Cousino, as next friends and natural guardians of the minor, Justin Cousino, Petitioners, v. The STATE of Florida, Francisco Fuster Escalona, a/k/a Frank Fuster, Ileana Fuster, and the Honorable Robert Newman, Respondents.

No. 85-1760, 85-1758.

District Court of Appeal of Florida,

Third District.

Aug. 7, 1985.

Adams, Hunter, Angones, Adams, Adams & McClure and Steven Hunter, Miami, for petitioners.

Michael L. Von Zamft, Hialeah, for Ileana Fuster.

Jeffrey Samek, Miami for Francisco Fuster Escalona, a/k/a Frank Fuster.

Janet Reno, State Atty. and Richard L. Shiffrin, Asst. State Atty., for State of Fla.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

PER CURIAM.

The petition for writ of common law certiorari to review an order of the trial court which purportedly denied the petitioners' motion for a protective order is dismissed as premature. The record fairly reflects that the trial court has not denied the motion for protective order and indeed has ordered that the deposition of the child be discontinued until further order of the trial court. ¹ Our dismissal is without prejudice to the petitioners to seek appropriate relief in this court if and when the trial court enters some further order requiring that the child be deposed. ²

Petition dismissed.

DANIEL S. PEARSON and JORGENSON, JJ., concur.

SCHWARTZ, Chief Judge (dissenting).

In resolving the discovery issue before us, we must balance the cognizable, permissible interests legitimately to be served by taking this child's deposition--which, as opposed to the impermissible, indeed reprehensible ones it actually promotes, I believe to be utterly non-existent--with the potential harm to the child which would be obviated by precluding it. State v. Keitz, 410 So.2d 625 (Fla. 4th DCA 1982); see generally South Florida Blood Service, Inc. v. Rasmussen, 467 So.2d 798 (Fla. 3d DCA 1985); Dade County Medical Ass'n v. Hlis, 372 So.2d 117 (Fla. 3d DCA 1979). On that basis, I think it clear that the trial court abused its discretion and departed from the essential requirements of the law in denying the motion for a protective order that no deposition whatever be taken. Hence, I would quash the order under review outright.

1 Although we do not have the benefit of a written order, the following appears at the conclusion of the hearing on petitioners' motion for protective order:

"MR. SAMEK [DEFENSE COUNSEL]: Judge, would it be fair to summarize that the Motion for Protective Order is to continue as is, at this time, and we are not to continue the deposition without further Order of the Court?

"THE COURT: Correct. That's what I'm saying. That's all I'm doing at this time." (Tr. 30).

Later, in unmistakable terms, the court said:

"THE COURT:...