State v. Filipowich, 87-1355
| Decision Date | 19 July 1988 |
| Docket Number | No. 87-1355,87-1355 |
| Citation | 528 So.2d 511,13 Fla. L. Weekly 1701 |
| Parties | 13 Fla. L. Weekly 1701 The STATE of Florida, Petitioner, v. Martin FILIPOWICH, Respondent. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen. and Susan Odzer Hugentugler and Richard L. Polin, Asst. Attys. Gen., for the State.
Bennett H. Brummer, Public Defender and Harvey J. Sepler, Asst. Public Defender, for respondent.
Before HUBBART and BASKIN and DANIEL S. PEARSON, JJ.
This is a petition for a writ of certiorari filed by the state seeking review of a trial court order excluding the trial testimony of a state witness for an alleged discovery violation. See Fla.R.Crim.P. 3.220(j). We have jurisdiction to entertain this petition. State v. Pettis, 520 So.2d 250, 253 (Fla.1988); State v. Cecil, 518 So.2d 919 (Fla.1988); Art. V, § 4(b)(3), Fla. Const.; Fla.R.App.P. 9.030(b)(2).
As stated in the order under review, the legal basis for excluding the state witness was that (1) the state failed to produce the witness, who was apparently a prisoner in the state correctional system, for a defense discovery deposition at the time set by the court, and (2) the state failed to file an amended discovery response reflecting a changed address of the state witness within the state correctional system. We conclude that the penalty of exclusion was too drastic a remedy for the technical discovery violations in this case because the defendant was not prejudiced by these violations.
It appears, without dispute, that the witness was in fact produced by the state for a defense discovery deposition, but was a little over an hour late under the court order requiring production; there is no showing that the defendant could not have deposed the subject witness at the time the witness was produced. True, the case was scheduled to go to trial shortly after the witness was originally scheduled to be deposed, but the case was continued by the court in any event. The inaccurate address of the witness supplied by the state in no way prejudiced the defendant's preparation of the case; the defendant did not attempt to depose the witness in advance of the scheduled trial date and was not otherwise misled by the inaccurate address.
Ordinarily, a trial court has no authority to order the state to produce a witness for a defense discovery deposition, and the failure of the state to comply with such an order affords no basis for excluding the witness' testimony at trial. State v....
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State v. Diamond
...should remove any such doubt: State v. Pettis, 520 So.2d 250 (Fla.1988); State v. Cecil, 518 So.2d 919 (Fla.1988); State v. Filipowich, 528 So.2d 511 (Fla. 3rd DCA 1988). I can think of no more deserving case for the exercise of certiorari jurisdiction than this where there has clearly been......
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State v. Sowers, 1D99-939.
...e.g., State v. Bradford, 658 So.2d 572 (Fla. 5th DCA 1995); State v. Schwartz, 605 So.2d 1000 (Fla. 2d DCA 1992); State v. Filipowich, 528 So.2d 511 (Fla. 3d DCA 1988). To be entitled to certiorari relief, the State must demonstrate that the trial court's order amounts to a violation of a c......