State v. Taylor

537 So. 2d 1091, 14 Fla. L. Weekly 267, 1989 Fla. App. LEXIS 286, 1989 WL 4382
CourtDistrict Court of Appeal of Florida
DecidedJanuary 25, 1989
DocketNo. 87-2036
StatusPublished

This text of 537 So. 2d 1091 (State v. Taylor) 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
State v. Taylor, 537 So. 2d 1091, 14 Fla. L. Weekly 267, 1989 Fla. App. LEXIS 286, 1989 WL 4382 (Fla. Ct. App. 1989).

Opinion

PER CURIAM.

Appellant, State of Florida, appeals an order dismissing a criminal information against appellees, defendants below, on the basis of prosecutorial and police misconduct. While we can understand the trial court’s frustration with the state’s conduct, we are compelled to conclude that dismissal of the information was an abuse of discretion and, therefore, to reverse. A summary of the relevant events, culminating in the trial court’s order dismissing the information, follows.

On July 12, 1985, defendants were charged by information with trafficking and conspiring to traffic in marijuana. Defendants timely demanded discovery. Among other things, the discovery demand asked whether the state had any material or information which had been provided by a confidential informant. On August 23, 1985, the state responded that no material or information had been provided by a confidential informant.

On October 1, 1985, pursuant to a subpoena, defendants deposed Officer Kridos, one of the police officers who had been involved in the investigation. Officer Kri-dos refused to answer any questions regarding either the existence of or the role played by any confidential informant in the investigation. On November 4, 1985, defendants filed a motion requesting the trial court to compel Officer Kridos to answer such questions. That motion was heard and denied on November 13, 1985, by a retired county judge sitting temporarily in place of the circuit judge to whom the case was assigned. On November 26, 1985, defendants moved for a rehearing.

On July 8, 1986, the circuit judge to whom the case was assigned heard the defendants’ motion for rehearing. During the hearing, the assistant state attorney then assigned to the case stated that a confidential informant had been involved in the investigation. The trial court orally reversed the prior order, stating that defendants were entitled to pursue certain lines of inquiry with Officer Kridos regarding the role of the confidential informant. It was understood that Officer Kridos’ deposition would be reset. Defense counsel offered to prepare a proposed order, and the trial court suggested generally what it should contain. However, no written order was ever entered.

Officer Kridos was subpoenaed to appear for his deposition on September 22, 1986. However, defense counsel allowed Officer Kridos to cancel that deposition, and a new subpoena was issued for October 8, 1986. Officer Kridos appeared and was deposed on that date. He again refused to answer any questions regarding the confidential informant. Nobody from the state attorney’s office appeared at the deposition.

On October 14, 1986, defendants filed a motion requesting that Officer Kridos and Officer Tiderington (the other police officer who had participated in the investigation) be prohibited from testifying at trial. The trial court heard the motion on October 22. At the hearing, a new assistant state attorney who had assumed responsibility for the case represented that Officer Kridos had telephoned him before the deposition and said that he would not answer questions regarding the confidential informant without a written order directing him to do so. According to the assistant state attorney, he knew at that time that a hearing had been held on July 8, but he was not aware of what the trial court’s ruling had been. Therefore, he advised Officer Kridos that the position he intended to take was appropriate. The trial court found no bad faith [1093]*1093on the part of the state and, therefore, denied the motion. However, it directed the assistant state attorney to reschedule the officers’ depositions at defense counsel’s convenience.

The officers’ depositions had not been rescheduled by December 4,1986, when the trial court held a status hearing. The trial court again directed the state to make the officers available for their depositions.

Defense counsel and the assistant state attorney communicated, and agreed that the officers’ depositions would be taken on January 15, 1987. Accordingly, on December 22, 1986, defense counsel wrote both officers, advising them that their depositions would be taken on January 15. A subpoena was not issued to compel the attendance of either officer.

On January 14, Officer Kridos telephoned defense counsel and said that he would not appear for his deposition without a subpoena. Officer Kridos did not appear on January 15, although Officer Tidering-ton and the assistant state attorney did. Officer Tiderington testified that a confidential informant had been involved in the investigation, but that only Officer Kridos knew the particulars of the involvement. The assistant state attorney telephoned Officer Kridos and urged him to come so that he could be deposed. However, Officer Kridos refused, saying that, without a subpoena, he had no obligation to do so.

Another status hearing was held on February 26, 1987. At that hearing, the trial court initially directed the assistant state attorney to have both officers present for their depositions at 9:00 a.m. on the following Monday, March 2. However, the following discussion then occurred between counsel:

[Defense Counsel]: ... Your Honor, may I suggest this. Mr. [Assistant State Attorney], may I suggest that instead of making it nine o’clock, so that—and I appreciate the court’s ardor in protecting an already bad situation—may I suggest that we make it say eleven o’clock in your office, so that you will be able to handle your trial schedule.
[Assistant State Attorney]: I may not be in my office at eleven o’clock. I will have them there. Sometimes I’m still down here at eleven o’clock. One o’clock my office?
[Defense Counsel]: One o’clock at your office.

Despite the foregoing conversation, defendants now assert that the agreement reached was that the officers would be present for their depositions at 11:00 a.m. on March 2. They represent in their brief that defense counsel and the assistant state attorney were present in the latter’s office at 11:00 a.m., but that Officer Kridos was not.1 On March 13, 1987, defendants moved to dismiss the information because of prosecutorial or police misconduct.

The trial court held a hearing on the motion to dismiss on April 9, 1987. Defense counsel told the trial court that the state had been ordered to produce Officer Kridos for his deposition at 9:00 a.m. on March 2. When the assistant state attorney (the third in the case) responded that it had been agreed that the deposition would be at 1:00 p.m., and that Officer Kridos had been available for deposition at that time, the trial court responded that its recollection was that the agreement was that the deposition would take place at 11:00 a.m. The assistant state attorney then informed the trial court that Officer Kridos was present and available to be deposed; and that dismissal was not warranted under the circumstances. Nevertheless, the trial court announced that the motion to dismiss would be granted, and requested defense counsel to prepare a proposed order.

On July 14, 1987, the trial court signed a lengthy Order Granting Motion to Dismiss for Prosecutorial and Police Misconduct. Although that Order makes numerous findings, the one which is critical in our opinion is that which states that, on March 2, 1987, the trial court “ordered and demanded that Detective Kridos appear for depositions the next day, March 3, 1987, at 11:00 a.m. [1094]

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Bluebook (online)
537 So. 2d 1091, 14 Fla. L. Weekly 267, 1989 Fla. App. LEXIS 286, 1989 WL 4382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-taylor-fladistctapp-1989.