Goree v. State, 80-2491
| Decision Date | 06 April 1982 |
| Docket Number | No. 80-2491,80-2491 |
| Citation | 411 So.2d 1352 |
| Parties | Derrick GOREE, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellee.
Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
Late in the afternoon of the second day of trial, the defendant requested the trial court to postpone the completion of the taking of testimony until the following day. The stated reason for the request was to allow the defendant an opportunity to locate a witness whom the defendant had learned of shortly before the trial began, but the need for whom was apparently not thought to be critical enough to prevent the defendant from announcing his readiness for trial or to cause the defendant to request a continuance before the trial commenced. The trial court refused the requested postponement and gave the defendant an hour to produce and present the witness. The defendant was unable to do so.
Clearly, had the trial concluded, which it did not, on the evening of the second day of trial, the trial court's action would be well within its discretion. Even conceding, arguendo, the dubious proposition that the witness could have given substantial and significant testimony in favor of the defendant, there was not the slightest showing made by the defendant that it was probable that the witness would be located, subpoenaed, and his testimony procured within a reasonable time or that the defendant, charged with these crimes some five months earlier, had exercised any diligence, much less due diligence, in procuring this witness's presence. See Moore v. State, 59 Fla. 23, 52 So. 971 (1910); Pittman v. State, 360 So.2d 1138 (Fla. 1st DCA 1978); Whalen v. State, 335 So.2d 631 (Fla. 1st DCA 1976); Gause v. State, 270 So.2d 383 (Fla. 3d DCA 1972); Coney v. State, 258 So.2d 497 (Fla. 3d DCA 1972). And, again, if on the following morning, with final arguments about to commence, the trial court had rejected a defense request for further time to produce and present the testimony of the witness, we would be unable to find error.
Admitting these obstacles, the defendant contends that the arbitrariness of the trial court's ruling lies in the fact that the ruling precluded the defendant from any further opportunity to obtain the witness's presence and testimony on the following morning, notwithstanding that the trial was still going on. But the simple fact is that the defendant, rebuffed the evening before, did nothing to obtain the presence of the witness on the following day, made no motion to continue or reopen the case, and made no greater or other showing that the probability of locating or procuring the testimony of the witness had improved-none of which he was precluded from doing. While the defendant attempts to excuse his inaction by relying on the doctrine that a party is not required to conduct an exercise in futility in the face of a positive adverse ruling by the court, we find that doctrine inapplicable where, as here, the circumstances which obtained at the time of the court's initial ruling (an intention to complete the trial that same day) have materially changed (trial carried over to the following day). Compare Bailey v. State, 224 So.2d 296 (Fla.1969); Brown v. State, 206 So.2d 377 (Fla.1968); Birge v. State, 92 So.2d 819 (Fla.1957) ().
We also find the defendant's reliance on Hicks v. Wainwright, 633 F.2d 1146 (5th Cir. 1981), misplaced. In Hicks, unlike the present case, the defendant's sole expert to be offered in support of an insanity defense was under subpoena, had been available to testify the entire day of the trial, was unavailable at 4:30 p. m. when the prosecution rested, but would have been available that same evening beginning at 10:00 p. m. The trial court refused to grant any postponement to allow the witness's testimony to be heard and, moreover, refused to lend the aid of the court to compel the witness's appearance, despite clear indication from the witness's prior sworn statements that the witness's testimony would substantially and significantly support the defendant's insanity defense. Finally, in Hicks, since closing arguments were held that very evening, the defendant's failure to attempt to reopen the case the following day was, under those circumstances, deemed excusable. But see Evers v. State, 280 So.2d 30 (Fla. 3d DCA 1973) ().
Although we affirm the defendant's...
To continue reading
Request your trial
-
Geralds v. State
...v. O'Neill, 767 F.2d 780, 784 (11th Cir.1985); see also Robinson v. State, 561 So.2d 419, 421 (Fla. 1st DCA 1990); Goree v. State, 411 So.2d 1352, 1353 (Fla. 3d DCA 1982). Geralds has failed to demonstrate compliance with any of these requirements. 7 Accordingly, we find that the trial cour......
-
Wilson v. State
...recognized by our sister courts in the second and third districts in Adams v. State, 435 So.2d 953 (Fla.2d DCA 1983) and Goree v. State, 411 So.2d 1352 (Fla.3d DCA 1982), the trial court has the authority under section 947.16(3) to retain jurisdiction over one-half of the total consecutive ......
-
Weaver v. State, 83-907
...2d DCA 1983); Wicker v. State, 438 So.2d 398 (Fla. 2d DCA 1983); Adams v. State, 435 So.2d 953 (Fla. 2d DCA 1983); Goree v. State, 411 So.2d 1352 (Fla. 3d DCA 1982). Affirmed and ...
-
Smith v. State
...v. O'Neill, 767 F.2d 780, 784 (11th Cir.1985); see also Robinson v. State, 561 So.2d 419, 421 (Fla. 1st DCA 1990); Goree v. State, 411 So.2d 1352, 1353 (Fla. 3d DCA 1982)). Here, defense counsel failed to carry the burden described above; indeed, it is questionable that he adequately met an......