Cade v. State

658 So. 2d 550, 1995 WL 326107
CourtDistrict Court of Appeal of Florida
DecidedJune 2, 1995
Docket92-142
StatusPublished
Cited by30 cases

This text of 658 So. 2d 550 (Cade v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cade v. State, 658 So. 2d 550, 1995 WL 326107 (Fla. Ct. App. 1995).

Opinion

658 So.2d 550 (1995)

Jessie J. CADE, Appellant,
v.
STATE of Florida, Appellee.

No. 92-142.

District Court of Appeal of Florida, Fifth District.

June 2, 1995.

*551 James B. Gibson, Public Defender, and M.A. Lucas, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Rebecca Roark Wall, Asst. Atty. Gen., Daytona Beach, for appellee.

ON MOTION FOR REHEARING

GRIFFIN, Judge.

Appellant's motion for rehearing is granted. We withdraw our prior opinion and substitute the following in its stead.

Appellant seeks review in this consolidated appeal of his convictions in two cases arising out of the robberies of two "fast food" restaurants in Citrus County, in the course of which appellant allegedly kidnapped and sexually battered female employees. In Case No. 91-208, he was convicted of kidnapping while armed, sexual battery while armed, burglary of a conveyance while armed, aggravated battery with a firearm and grand theft. In Case 91-208, he was convicted of robbery with a firearm, kidnapping while armed, and sexual battery while armed. We reverse.

*552 Although there is circumstantial evidence of the defendant's guilt in both cases, neither victim was able, at any time, to identify her assailant, and their physical description of the attacker did not closely match appellant. Appellant's mother corroborated the appellant's alibi in virtually every particular, including his explanation of why he was found in possession of twenty-four $10 bills hidden in his underwear, some of which bore markings like those used by one of the fast food restaurants. Accordingly, the testimony of the state's DNA expert that appellant's DNA matched that taken from semen found on the clothing of the victims in both cases was crucial to the state's case.

From the inception of the case, defense counsel sought the appointment of a DNA expert. Defense counsel promptly filed a motion for appointment of an expert that specifically identified the expert proposed to be retained and an included estimate of fees. The trial court refused to appoint a DNA expert for the defendant because defense counsel failed to make any "showing as a need to have an expert to confront anything at this point." The court further explained:

THE COURT: I think y'all have not demonstrated any necessity to show that there's a need for an expert. I'll deny that motion. Again, it's open. After you take the deposition you find that there's something that you can't get through it, you can receive at the library at the university, or wherever, then I'll reconsider the motion. At this point, there's been no showing so I'll deny the motion.

The response of defense counsel was:

[A]nd, furthermore, due to the complex nature of DNA evidence — I understand the Court wants me to provide ground for why we need this, but due to the complicated nature of that particular evidence, I can't tell the Court what I'm looking for because it's so complicated.
A layman can't really tell whether or not it is proper evidence. They could walk in here with an expert and provide insufficient scientific data and without an expert we would not know the difference.
* * * * * *
I've also been informed that ... the State has obtained a genetics expert, and so I would add that and it's an additional ground as to why it's important.
* * * * * *
Judge, as a matter of fact, in — these things can be very complicated. I don't know about Jacksonville. I do know that in the past history, DNA tests in most of the laboratories where they initially started DNA testing, there have been some bugs in the initial testing. And this test is among the first tests that Jacksonville has run... .

Section 914.06, Florida Statutes (1991), provides:

Compensation of expert witnesses in criminal cases. — In a criminal case when the state or an indigent defendant requires the services of an expert witness whose opinion is relevant to the issues of the case, the court shall award reasonable compensation to the expert witness that shall be taxed and paid by the county as costs in the same manner as other costs.

Section 27.54(3), Florida Statutes (1991), further provides in pertinent part:

The public defender's offices shall also be provided with pretrial consultation fees for expert or other potential witnesses consulted before trial by the public defender ... which costs are certified by the public defender as being useful and necessary in the preparation of a criminal defense, provided that nothing herein shall be construed to prohibit the county from contesting the reasonableness of the expenditure in the court wherein the criminal case is brought... .

It should not go unobserved that, unlike the federal statute,[1] Florida's current statutes do *553 not explicitly create a procedure for "appointment" or court authorization in advance of hiring an expert. Prior to its amendment in 1985, section 914.06 did contemplate the obtaining of an advance order authorizing an expert. The available legislative history suggests that the 1985 amendments were designed in part to provide fees for pre-trial expert consultations for both the state attorney and for the public defender. Staff Analysis, Fla. House of Representatives HB 1023 (April 16, 1985); see also "Statement of Substantial Changes Contained in Committee Substitute for SB 591" Fla. Senate Appropriations Committee (May 23, 1985).

Since the intent of the statute is unclear and since the few Florida cases that address the expert compensation issue speak in terms of "appointment," e.g. Burch v. State, 522 So.2d 810, 812 (Fla. 1988); Martin v. State, 455 So.2d 370, 372 (Fla. 1984), we have assumed that the failure of the trial judge to grant a pretrial motion to "appoint" an expert to assist an indigent defendant in a criminal case can be reversible error. See Dingle v. State, 654 So.2d 164 (Fla. 3d DCA 1995).

Although the issue of compensation of non-psychiatric experts for indigent criminal defendants in non-capital cases has been the subject of substantial case law in many other jurisdictions, there are few reported decisions in Florida. The legislature's use of the word "require" in section 914.06 does not give the courts much direction. The only Florida case that suggests the breadth of the exercise of discretion to authorize an expert or the point at which the exercise of discretion has been abused by the trial court is Burch, and in that case, the court simply concluded that the court was not bound to authorize fourteen thousand dollars for a renowned PCP expert when local, less expensive experts were available. 522 So.2d at 812. In Martin, the Florida Supreme Court did say that the standard of review for appointment of experts is "abuse of discretion." 455 So.2d at 372. See also Quince v. State, 477 So.2d 535, 537 (Fla. 1989), cert. denied, 475 U.S. 1132, 106 S.Ct. 1662, 90 L.Ed.2d 204 (1986).

In attempting to answer the question in this case, we have reviewed the developing law in other jurisdictions. Although this has been of some help, we are bound to conclude that determining "abuse of discretion" in this context has typically boiled down to an ad hoc

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Gourdin
2024 UT App 74 (Court of Appeals of Utah, 2024)
State v. Wood
966 N.W.2d 825 (Nebraska Supreme Court, 2021)
State v. Davis
318 S.W.3d 618 (Supreme Court of Missouri, 2010)
State v. Martinez
942 A.2d 1043 (Connecticut Appellate Court, 2008)
Moore v. State
889 A.2d 325 (Court of Appeals of Maryland, 2005)
Marshall v. Crosby
911 So. 2d 1129 (Supreme Court of Florida, 2005)
Robbins v. State
891 So. 2d 1102 (District Court of Appeal of Florida, 2004)
Moise v. State
700 So. 2d 438 (District Court of Appeal of Florida, 1997)
Dingle v. State
654 So. 2d 164 (District Court of Appeal of Florida, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
658 So. 2d 550, 1995 WL 326107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cade-v-state-fladistctapp-1995.