State v. Aronson

OPINION OF THE COURT

LEVINE, J.

The State appeals from the order discharging the Defendant for a *50violation of Florida Rule of Criminal Procedure 3.191 (speedy trial rule).

The Defendant was arrested for Driving Under the Influence (DUI) on May 23, 1987. The State appealed certain pretrial rulings, and the final mandate was returned by the appellate court on July 18, 1988. The case was then set for trial on September 6, 1988.

When the trial date was scheduled by the clerk, the defense attempted to subpoena Florida Highway Patrol (FHP) Trooper Isabella Brown as a defense witness for the trial. Service of subpoenas on law enforcement officers in this jurisdiction is generally obtained through the officer’s particular department. Various police departments have agreed to accept service for their employees rather than divulging home addresses, recognizing the potential danger in revealing the home addresses of law enforcement officials in discovery proceedings. The defense complied with local discovery practice and did not ask Trooper Brown for her home address during her deposition. The trial subpoena was delivered to the FHP office.

The local Florida Highway Patrol office, however, refused to accept service of the trial subpoena for Trooper Brown, indicating that the Trooper was no longer employed by FHP. The defense then filed a motion requesting the home address of the Trooper from the state, for the purpose of serving her with a trial subpoena. On September 2, 1988, the trial court granted the motion, apparently without objection, and directed the state to provide the defense with the home address.

The state, however, did nothing to obtain the address or to contest the trial court’s order. When the trial date came on September 6, the defense protested that they could not obtain the presence of an essential witness because the state had never complied with the order to produce the Trooper’s home address. The trial court found that the state had indeed failed to comply with the order. The trial court again ordered the state to comply by providing the home address, and the case was rescheduled for trial. At the next trial date, September 19, 1988, the state had again failed to comply with the court’s order to provide the home address. The state did not do anything to obtain the information, did not ask for any additional time to try, did not request an extension of the speedy trial rule, and did not appeal the original production order.

By chance, another FHP trooper was at the hearing on September 19, and told the parties that he believed Trooper Brown was deceased. No evidence was presented to support the statement. The defense then moved to dismiss the charges because of the alleged gross negligence of *51the state in failing to comply with the court’s order to produce the home address. The court set the matter for a hearing on the motion to dismiss and to confirm Trooper Brown’s death.

The hearing on the motion was scheduled for November 2, 1988, beyond the speedy trial time provided for in Florida Rule of Criminal Procedure 3.191(g). The state failed to object or mention the speedy trial problem to the trial court at any time before the time limit expired. On November 2, the defense moved for discharge, which the court granted.

Florida Rule of Criminal Procedure 3.220(f) provides that the court may require such discovery to the parties as justice may require. The defense established to the trial court that Trooper Brown indeed had exculpatory evidence in the case. The defense needed to locate Brown to serve her with a subpoena for the trial. Since she no longer worked at FHP, the defense had to serve Brown at her home address. The home address, however, was not public information, and was not otherwise available to the defense. The trial court determined that the state had access to the information, and ordered it to produce the address to the defense. This is exactly the type of discovery order contemplated by the Florida Rule of Criminal Procedure 3.220(f).

In State v Coney, 294 So.2d 82 (Fla. 1973), the Supreme Court of Florida held that the state may be required to produce information to the defense even if that information is not in its actual possession. The Court noted that the underlying philosophy for pretrial discovery is fairness, plain and simple. Id. at 87. The trial court in the case sub judice acted fairly and within its authority. The state cites to a line of cases, typified by Granade v Ader, 530 So.2d 1050 (Fla. 3DCA, 1988), rev. denied, 541 So.2d 1172 (Fla. 1989), which hold that the conduct of a witness is not within the responsibility of the state. Thus, the failure of a witness to appear for deposition or to answer certain questions is not the fault of the state. These cases do not apply here, because the court merely ordered the state to produce information. The state was not ordered to produce or control a witness.

The trial court was also correct in continuing the trial and holding the state responsible for the delays in the case. The court first ordered the production of the home address on September 2. The state did not object to or appeal the order. It also failed to do anything to comply with the order. On September 6, the court continued the trial to give the state another opportunity to comply with the discovery order. The state again failed to comply. It simply did nothing. When the case came up for trial on September 19, the court scheduled the matter for *52a hearing on possible sanctions. The speedy trial time had expired by this hearing.

A continuance is one of the possible sanctions for discovery violations enumerated in Florida Rule of Criminal Procedure 3.110(n). This sanction was explicitly approved in State v Del Gaudio, 445 SO.2d 605, 611 (Fla. 3DCA 1984), rev. denied, 453 So.2d 85 (Fla. 1984), even when the continuance results in the case being scheduled after the expiration date for the speedy trial rule. The trial court here properly continued the case after it was clearly established that the state did not even attempt to comply with the discovery order. The resulting dismissal on speeches is clearly the fault of the state. Miketa v Cardonne, 549 So.2d 1158 (Fla. 3DCA 1989). See State v Brown, 527 So.2d 209 (Fla. 3DCA 1988), rev. denied, 534 So.2d 394 (Fla. 1988).

This Court is also troubled by the failure of the assistant state attorneys assigned to the case to take even the simplest of actions to try to comply with the court’s discovery order. Lawyers have a professional responsibility to follow the legal orders of the court or to follow appropriate procedures to challenge those orders. The Court understands that assistant state attorneys and assistant public defenders must cope with very heavy caseloads. It is inexcusable, however, to simply ignore a court order on two separate occasions. We urge the attorneys involved in this case to conduct themselves more responsibly in the future. AFFIRMED. FULLER, J., Concurs, ESQUIROZ, J., Dissents with opinion.