State ex Rel. Gerstein v. Durant

22 Citing cases

  1. State v. Brown

    527 So. 2d 209 (Fla. Dist. Ct. App. 1988)   Cited 25 times
    Characterizing defense tactics as "spurious"

    See State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla. 1971); State v. Wassel, 502 So.2d 476 (Fla. 3d DCA 1987); Homer v. State, 358 So.2d 1176 (Fla. 3d DCA 1978), cert. denied, 364 So.2d 886 (Fla. 1978). The defendant attempts to invoke a purported exception to this rule set forth in dicta in such cases as State v. Del Gaudio, 445 So.2d 605, 611-12 (Fla. 3d DCA 1984), pet. for review denied, 453 So.2d 45 (Fla. 1984); State v. Banks, 349 So.2d 736 (Fla. 3d DCA 1977); and State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977), under which a continuance sought by the defense may nevertheless be "charged" to the prosecution on the ground that it resulted from a state discovery violation. We cannot agree with this position.

  2. State v. Bevins

    446 A.2d 1119 (Me. 1982)   Cited 1 times

    We hold that M.R.Crim.P. 41(e) does not apply in a case where the property which is the subject of the 41(e) motion is not within the possession or control of either the trial court, a police agency or the state's prosecuting attorney. See Padilla v. United States, 267 F.2d 351, 352 (9th Cir. 1959) (affirming trial court's denial of motion where arresting officers turned seized cash over to collector of customs and money never came into trial court's orbit); United States v. Totaro, 472 F. Supp. 726, 729 (D.Md. 1979) (entering order denying motion where government no longer had possession or control of seized money); State ex rel Gerstein v. Durant, 348 So.2d 405, 407 (Fla. Dist.Ct.App. 1977) (defendant cannot make application to trial judge for return of seized property if property is not held in custodia legis within the territorial jurisdiction of the court). But see United States v. Francis, 646 F.2d 251 (6th Cir. 1981).

  3. State v. Boykins

    314 So. 3d 429 (Fla. Dist. Ct. App. 2020)

    We agree. It is well established that it is not the responsibility of the prosecution to produce the state's witnesses for depositions .... Furthermore, as this court stated in State ex rel. Gerstein v. Durant, 348 So. 2d 405, 408 (Fla. 3d DCA 1977) : "to order the state to do so, or to dismiss a criminal case for the failure to do so, constitutes a departure from essential requirements of law." State v. Valdes, 443 So. 2d 302, 302 (Fla. 3d DCA 1983) (citations omitted).

  4. Gonzalez v. State

    152 So. 3d 69 (Fla. Dist. Ct. App. 2014)   Cited 1 times

    See Brown v. State, 613 So.2d 569 (Fla. 2d DCA 1993); Heinrich v. Johnson, 549 So.2d 1187 (Fla. 2d DCA 1989). See also State ex rel. Gerstein v. Durant, 348 So.2d 405, 407 (Fla. 3d DCA 1977) (applying section 812.061, Florida Statutes and holding that an application for return of property “may not be made when the property sought to be returned is not held in custodia legis within the territorial jurisdiction of the court.”). We express no opinion whether Gonzalez may properly pursue an alternative remedy through an original proceeding in civil court or otherwise; we hold merely that he may no longer seek such relief through motion or pleading in the criminal proceeding.

  5. Colby v. McNeill

    595 So. 2d 115 (Fla. Dist. Ct. App. 1992)   Cited 16 times
    Noting defense counsel's "diligent" efforts to obtain belated discovery

    State v. Golden, 571 So.2d 49, 49-50 (Fla. 3d DCA 1990); State v. Haynes, 557 So.2d 913, 914 (Fla. 3d DCA 1990); Stephens v. State, 359 So.2d 21, 22 (Fla. 3d DCA 1978); State v. Banks, 349 So.2d 736, 737 (Fla. 3d DCA 1977).See, e.g., State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977). III

  6. State v. Haynes

    557 So. 2d 913 (Fla. Dist. Ct. App. 1990)   Cited 4 times

    See, e.g., Fla.R.Crim.P. 3.220(j), 3.840. Nor do we preclude the trial court from continuing the trial of the cause until the witness appears for a defense deposition, while at the same time not charging the defendant with any trial delay for speedy trial purposes. See, e.g., State ex rel Gerstein v. Durant, 348 So.2d 405, 408 (Fla. 3d DCA 1977); Fla.R.Crim.P. 3.220(j). It is so ordered.

  7. State v. Carda

    495 So. 2d 912 (Fla. Dist. Ct. App. 1986)   Cited 8 times

    The state is not obliged, on pain of dismissal, to produce witnesses for deposition or trial. State v. Mesa, 395 So.2d 242, 243 (Fla. 3d DCA 1981); see Merritt; State v. Ashley, 393 So.2d 1168 (Fla. 3d DCA 1981); Knight v. State, 373 So.2d 52 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 761 (Fla. 1980); State v. Banks, 349 So.2d 736 (Fla. 3d DCA 1977); State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977); State v. Roig, 305 So.2d 836 (Fla. 3d DCA 1974); State v. Velazquez, 305 So.2d 837 (Fla. 3d DCA 1974), cert. denied, 315 So.2d 196 (Fla. 1975). Moreover, on a motion to dismiss, the state is entitled to the most favorable construction of its traverse, and it is improper for the court to determine factual issues and consider the weight of conflicting evidence or the credibility of witnesses.

  8. State v. Valdes

    443 So. 2d 302 (Fla. Dist. Ct. App. 1983)   Cited 9 times
    Reversing trial court order dismissing information for failure of the State to produce witness for deposition

    Thereupon, the lower court dismissed all charges against Valdes as a sanction for the state's failure to produce the witnesses. It is well established that it is not the responsibility of the prosecution to produce the state's witnesses for depositions. Turiano v. Butterworth, 416 So.2d 1261 (Fla. 4th DCA 1982); State v. Adderly, 411 So.2d 981 (Fla. 3d DCA 1982); State v. Banks, 349 So.2d 736 (Fla. 3d DCA 1977); State v. Roig, 305 So.2d 836 (Fla. 3d DCA 1974). Furthermore, as this court stated in State ex rel. Gerstein v. Durant, 348 So.2d 405, 408 (Fla. 3d DCA 1977): "[t]o order the state to do so, or to dismiss a criminal case for failure of the state to do so, constitutes a departure from essential requirements of law." Accordingly, the order dismissing the charges against Valdes is reversed and the cause is remanded for proceedings consistent with this opinion.

  9. State v. Jackson

    436 So. 2d 985 (Fla. Dist. Ct. App. 1983)   Cited 9 times

    It is not the responsibility of the state to produce a witness subpoenaed by a defendant for discovery purposes; to order the state to do so, or to dismiss a criminal case for failure of the state to do so, constitutes a departure from the essential requirements of law. State v. Adderly, 411 So.2d 981 (Fla. 3d DCA 1982); Knight v. State, 373 So.2d 52 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 761 (Fla. 1980); State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977); State v. Roig, 305 So.2d 836 (Fla. 3d DCA 1974). The petition for certiorari is granted and the order under review is quashed. It is so ordered.

  10. Turiano v. Butterworth

    416 So. 2d 1261 (Fla. Dist. Ct. App. 1982)   Cited 3 times

    State ex rel. Scaldeferri v. Sandstrom, 285 So.2d 409 (Fla. 1973). It should also be noted that appellant presented two affidavits which were admitted into evidence and he should not now be heard to deny the State the same privilege. The State had no obligation to produce Scott, a witness in the Federal Witness Protection Program. It has been held that it is not the responsibility of the State to produce out of state witnesses subpoenaed by the defendant for discovery purposes. State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977). When a prisoner asserts his nonpresence within the demanding state at the time in question, "it is clear that the burden is on him to overthrow conclusively the presumption against him."