Opinion
No. 98-2877
Opinion filed February 3, 1999
A petition for writ of certiorari to review an order of the Circuit Court for Dade County, Michael H. Salmon, Judge, L.T. No. 97-14096.
Robert A. Butterworth, Attorney General, and Keith S. Kromash, Assistant Attorney General, for appellant.
Jeffrey S. Weiner, for appellee.
Before SCHWARTZ, C.J., and NESBITT, and COPE, JJ.
The State petitions this Court for writ of certiorari in order for us to review the trial court's order granting defendant Tomas Bruno Gorrio's motion to exclude the State's two principal witnesses. We hereby grant the petition and vacate the order under review.
The State is not responsible for its witnesses' lack of cooperation with Gorrio's defense attorney, nor is the State responsible for procuring witnesses for defense discovery purposes. See State v. Roig, 305 So.2d 836 (Fla. 3d DCA 1974). In fact, these witnesses, both minors (and the alleged victims in the case), have frustrated both the defense and the State with their lack of cooperation. However, the State made efforts to procure these witnesses; indeed, the witnesses did appear for deposition by Gorrio's attorney, only to have the attorney discontinue the deposition when the State rejected the defense proposition of a below-guidelines sentence for Gorrio. Further, even the witnesses' failure to appear at deposition would not justify the exclusion of the witnesses at trial. See State v. Jackson, 436 So.2d 985 (Fla. 3d DCA 1983). Exclusion of witnesses is only appropriate when some lesser sanction has been attempted without success. See State v. Gonzalez, 695 So.2d 1290 (Fla. 4th DCA 1997).
Certiorari granted; order vacated.