State v. Lampp

• Decision Date: 21 June 1963
• Docket Number: No. 3678,3678
• Citation: 155 So.2d 10
• Parties: STATE of Florida, Petitioner, v. Edward R. LAMPP and Honorable John U. Bird, as Circuit Judge in and for Pinellas County, Respondents.
• Court: Florida District Court of Appeals

Page 10

155 So.2d 10

STATE of Florida, Petitioner, v. Edward R. LAMPP and Honorable John U. Bird, as Circuit Judge in and for Pinellas County, Respondents.

No. 3678.

District Court of Appeal of Florida, Second District.

June 21, 1963.

Rehearing Denied July 22, 1963.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., Tallahassee, for petitioner.

Mark R. Hawes, St. Petersburg, for respondents.

BARNS, PAUL D., Associate Judge.

Upon petition for common law certiorari the petitioner seeks review of an order of the Honorable John U. Bird as Circuit Judge ordering the clerk of the circuit to issue subpoenas ad testificandum to certain persons requiring them to appear before the court's Court Reporter and confer with defense counsel and under oath to fully disclose to defense their knowledge concerning facts in the case of State of Florida v. Edward R. Lampp wherein the defendant is charged with grand larceny. We find error, that the remedy by appeal would be inadequate, grant certiorari and quash the order.

The respondent Lampp by his sworn motion for the order entered by Judge Bird repesented that the proposed deponents had declined to confer with his counsel and that the defendant and his counsel are rendered helpless and impotent to prepare defendant's defense without the assistance of compulsory process of the court. The petition made a showing that the prospective deponents had knowledge of facts material to the case.

The petition taken by the State, the petitioner, is as follows:

It clearly appears from the application of the defendant, Edward R. Lampp, for the challenged order that his purpose was to interrogate witnesses before the court reporter prior to trial, for the purpose of discovery as to what they knew about the case. Said application made no pretense of making a showing which would justify the propounding of interrogatories to absent witnesses for trial purposes under Section 916.06, Florida Statutes F.S.A. (the only Florida statute authorizing the taking of depositions by a defendant in a criminal case).

However, the order here involved in effect gave the said Edward R. Lampp the right to take the depositions of witnesses (the State's witnesses, at that) for discovery purposes in order to assist him in preparing his defense, rather than for use as evidence at the trial; it not only required the issuance of subpoenas for said witnesses to appear before the court reporter but it also commanded said witnesses to confer with defense counsel before the court reporter, under oath, and fully disclose their knowledge of the facts in the case; it is, of course, to be assumed that the defendant would request the court reporter to take down the sworn testimony thus given by the witnesses, otherwise, there would be no point in having them appear before the court reporter.

Such a procedure is completely contrary to the criminal procedure which has grown up in the State of Florida and which has been in effect for generations past. It is in contravention of the common law, which is in force in this state.

The position taken by the repondent-defendant is as follows:

It was and is the position of Respondents that the following provisions of the Federal and Florida Constitution taken singly and/or as a whole, in light of the showing made, required the trial Judge to grant Respondent the relief set forth in the Order of September 11th.

1. The Equal Protection and Due Process of law clauses of Section 1 of the Fourteenth Amendment to the Federal Constitution, and the corresponding clauses of the Florida Constitution, Section 1 and 12 of the Declaration of Rights, Florida Constitution, F.S.A.

2. The Right To Counsel, The Right to Compulsory Process for the Attendance of Witnesses in his favor, and The Right To Demand The Nature and Cause of the Accusation against him; all embraced in Section 11 of the Delaration of Rights to the Florida Constitution and guaranteed and protected by the Fourteenth Amendment to the Federal Constitution.

It is the Respondent's position that he and the State of Florida occupy similar positions in that they are merely two parties to the same cause. Important substantive and procedural rights cannot be extended to one party in a cause and withheld from another without colliding with any civilized conception of Equal Protection, Equal Application and Due Process of law.

The subpoena power exercised by the State to compel witnesses purporting to have knowledge material to criminal cases to appear before the State Attorney and make a full disclosure to him of their knowledge of the facts in controversy before a Court Reporter in aid of his preparation for trial is that of the Court and not that of the State Attorney's office. When a Defendant in a criminal case demonstrates he is unable to prepare his case on the facts and desires to do so and properly invokes the compulsory assistance of the Court in this manner, he is entitled as a matter of right to the Court's assistance.

The defendant's organic right to counsel means something more than the appearance of counsel in the defendant's behalf. It includes the right to the beneficial enjoyment of informed, prepared, and conscientious counsel. This right extends not only to the trial itself but to the careful and conscientious preparation of defendant's case for trial, as well. The Florida Supreme Court has, on several occasions, recognized the invaluable assistance to a defendant of counsel in the careful investigation and preparation of both the law and the facts of the case in preparation of trial.

Where defense counsel cannot otherwise inform himself of the facts of the case, and where he properly invokes the assistance of the Court to this end, the denial of such assistance impinges upon the defendant's right to counsel in two particulars:

1. It denies defendant the beneficial enjoyment of his right to the assistance of counsel in preparation of the facts of the case for trial.

2. It denies the defendant the right to the assistance of counsel in intelligently invoking his Constitutional right to compulsory process for obtaining witnesses to testify in his behalf at the trial itself. This, because counsel and the defendant cannot intelligently invoke compulsory process for witnesses at the trial unless they have some knowledge of which witnesses have possession of material facts and what their testimony will be.

Additionally, it is Respondents' position that to give counsel the right and obligation to ascertain what the testimony of witnesses will be and to deny him the necessary authority to discharge that right and obligation, reduces the right to counsel to a hollow mockery.

It is further, Respondents' position that to extend to defendant compulsory process for the attendance of witnesses in his favor at the trial and to withhold from him and his counsel the means of intelligently invoking said process, which cannot be done without knowledge of the facts within the witnesses' possession, impinges upon his right to...