State v. Jett, 77-1918

• Decision Date: 16 May 1978
• Docket Number: No. 77-1918,77-1918
• Citation: 358 So.2d 875
• Parties: STATE of Florida, Petitioner, v. Brent JETT, Custodian of Records of Florida Cultural Exchange, Inc., and Florida Cultural Exchange, Inc., a Florida Corporation, Respondents.
• Court: Florida District Court of Appeals

Page 875

358 So.2d 875

STATE of Florida, Petitioner, v. Brent JETT, Custodian of Records of Florida Cultural Exchange, Inc., and Florida Cultural Exchange, Inc., a Florida Corporation, Respondents.

No. 77-1918.

District Court of Appeal of Florida,Third District.

May 16, 1978.

Janet Reno, State's Atty., and Stephen V. Rosin, Asst. State's Atty., for petitioner.

Orr, Nathan & Williams, Miami, for respondents.

Before PEARSON, NATHAN and KEHOE, JJ.

KEHOE, Judge.

Petitioner, respondent below, brings this petition for writ of certiorari seeking review of an order entered by the Circuit Court, Eleventh Judicial Circuit, quashing a subpoena duces tecum issued at the request of the Office of the State Attorney. For the reasons set forth below, we grant the petition and quash the order under review.

This action was initiated by petitioner when an Assistant State Attorney requested the issuance of a subpoena duces tecum which reads in part, as follows:

"TO ALL AND SINGULAR THE SHERIFFS OF THE STATE OF FLORIDA: GREETINGS

We command you to summon BRENT JETT, CUSTODIAN OF RECORDS OF FLORIDA CULTURAL EXCHANGE, INC., or any other Director, Officer or Employee of FLORIDA CULTURAL EXCHANGE, INC., AS CUSTODIAN OF RECORDS

1995 Oakland Park Boulevard

Suite 375

Fort Lauderdale, Florida 33306

to be and appear before the State Attorney on the 6th Floor of the Metropolitan Dade County Justice Building, 1351 N.W. 12th Street, Miami, on the 22nd day of July, 1977 at 10:00 o'clock A.M. and to bring with him and produce for inspection all the following corporate records:"

The subpoena duces tecum was issued by the Clerk of the Circuit Court, Eleventh Judicial Circuit on July 5, 1977, and was returnable on July 22, 1977. On July 13, 1977, respondents, movants below, filed a motion to quash the subpoena duces tecum on the ground, among other grounds, that it failed to contain an ad testificandum clause. We note that neither the above quoted portion of the subpoena duces tecum nor the other unquoted portions contained an ad testificandum clause. Subsequently, the Circuit Court held a hearing on the motion and, thereafter, entered an order dated August 8, 1977, quashing the subpoena duces tecum on the ground that it failed to include an ad testificandum clause. From this order, petitioner brings its petition for writ of certiorari.

Petitioner contends that the Circuit Court departed from the essential requirements of law by quashing the subpoena duces tecum on the basis that Section 27.04, Florida Statutes (1975), limits the State Attorney to request the issuance of only subpoenae which require the person subpoenaed to testify, i. e., subpoenae with an ad testificandum clause. Petitioner argues that the State Attorney is authorized to request both the issuance of subpoenae ad testificandum and subpoenae duces tecum. Further, petitioner argues that such subpoenae duces tecum are valid, even though they do not contain an ad testificandum clause.

In response, respondents in their brief concede that the State Attorney has the authority to request the issuance of both subpoenae ad testificandum and subpoenae duces tecum. However, respondents argue that, pursuant to Section 27.04, Florida Statutes (1975), any such subpoenae duces tecum, to be valid, must contain an ad testificandum clause.

The basic question presented by the instant petition for writ of certiorari is whether a subpoena duces tecum, which the State Attorney may request to have issued pursuant to Section 27.04, must contain an ad testificandum clause to be valid. This was the precise question decided, adversely to petitioner, by the Circuit Court when it entered its order quashing the subpoena duces tecum issued at the...