IN THE SUPREME COURT OF FLORIDA...Matute-Chirinos, 713 So. 2d 1006, 1008 (Fla. 1998) quoting, State...

Electronically Filed 11/25/2013 02:26:40 PM ET

RECEIVED, 11/25/2013 14:28:52, John A. Tomasino, Clerk, Supreme Court

IN THE SUPREME COURT OF FLORIDA

Case No. SC13

PAUL BEASLEY JOHNSON, Petitioner,

vs.

STATE OF FLORIDA, L. T. Case No. 1981-CF-000112-A1XX Respondent.

-- CONSOLIDATED -

WILLIE JOHNSON, Petitioner,

vs.

STATE OF FLORIDA, L. T. Case No. 2012CF-007375-XX Respondent,

PETITION FOR WRIT OF CERTIORARI

TO THE CIRCUIT COURT FOR THE TENTH JUDICIAL CIRCUIT, POLK COUNTY, FLORIDA

HOWARD L. DIMMIG, II Public Defender

Robert A. Young, FBN 144826 General Counsel Post Office Box 9000-PD Bartow, FL 33831-9000

Introduction

These consolidated cases present an important, unsettled question of

statewide significance: Does Florida's evidentiary rule of sequestration

apply?

Recently, the Chief Judge of the Tenth Judicial Circuit notified all

local attorneys of his finding that all of the juries in Polk County had not

been summoned according to law since January, 2010. Both Petitioners have

been found guilty of unrelated crimes by different Polk County juries.1Both

Petitioners filed motions for new trials. Their motions stated (among other

issues) that the defects in the jury venires recently announced by the Chief

Judge made their verdicts both statutorily unlawful and unconstitutional. The

trial court consolidated these otherwise unrelated cases for a single

evidentiary hearing on the jury issue.2 In preparation for the evidentiary

hearing, depositions were set for three key public-employee witnesses who

had knowledge of, or who controlled, the juror summoning process in Polk

County. Those witnesses all engaged their own lawyers to represent them at

their depositions.

1 Paul Beasley Johnson's jury was a 12-person death-qualified panel that returned a recommendation of death. 2 Willie Johnson has been sentenced. Despite his timely filed motion for new trial raising the juror issues, he filed a pro se Notice of Appeal (Case No. 2D13-2164). The District Court of Appeal has relinquished jurisdiction pending the outcome of this matter.

Johnson v. State Petition for Certiorari, page 2.

The lawyers for two of the witnesses announced their intention to

attend the depositions of all the other witnesses so that their clients would

not be "blind-sided" by "testimony that will be available to the public." Both

Petitioners and the witnesses filed motions with the trial court raising

contradictory positions about the witnesses' lawyers' right to attend the

depositions of all the other witnesses, including expert witnesses. They also

disagree about whether the witnesses have the burden of proof to show

reasons why their attendance should be allowed, or the Petitioners have the

burden to demonstrate harm by their attendance. The State Attorneys from

two circuits expressed no objection to the witnesses' motions. The trial court

heard argument of counsel, and "dictated" an oral decision into the record,

but declined to enter a written order at that time.

Certiorari was brought to this Court (Case SC13-1740). In an Order

entered on November 6, 2013, this Court "denied without prejudice," the

relief sought, presumably because there was then no written order. More

recently, on December 20, 2013, the trial court entered its written order

granting the witnesses' lawyers' motion to attend all the depositions of the

other witnesses, including Petitioners' experts and this Petition ensued.

This Court has jurisdiction to decide this unsettled issue because

Petitioner Paul Beasley Johnson has been convicted and, on remand, is


awaiting re-sentencing by the trial court with a jury recommendation of

death; and Petitioner Willie Johnson's non-capital case was consolidated for

evidentiary hearing by the trial court.

This Court should decide this issue for several jurisprudentially

important reasons including: 1) the question arises frequently in both

criminal and civil cases throughout Florida, 2) there is a long-standing split

of authority in District Courts of Appeal decisions, and 3) death-penalty

jurisprudence is, and must be the exclusive province of this Court.

Jurisdictionalfacts: Paul B. Johnson

1. Paul Johnson was tried and convicted of three counts of first-

degree murder in 1981. The convictions were reversed and a retrial was

ordered when this Court held that Mr. Johnson received ineffective

assistance of appellate counsel based on counsel's failure to raise as issue on

appeal, the trial court's refusal to sequester the jury after it began its

deliberations. Johnson v. Wainwright, 498 So. 2d 938, 939 (1986).

2. Paul Johnson was tried and again convicted in 1988. On post-

conviction review, this Court found prosecutorial misconduct, and affirmed

his convictions, but vacated the death sentences and remanded the case for a

new penalty trial. Johnson v. State, 44 So. 3d 51, 54 (2010).


3. The new penalty phase trial was held and a twelve-person jury

recommended death on February 20, 2013. On March 1, Mr. Johnson filed a

motion for a new penalty trial and on April 18, 2013, Mr. Johnson filed a

supplement to the motion for a new penalty trial after the Chief Judge

informed trial counsel and others that the procedure for the summoning of

all the juiy venires in Polk County had not been done according to law.

[Appendix A, Memorandum dated April 10, 2013, from Chief Judge Smith;

Appendix B, Paul Johnson's Motions for New Trial].

4. The trial court set an evidentiary hearing, in preparation for

which depositions were noticed for dates agreed on by the State Attorneys

for the Eighth Judicial Circuit,3 the Tenth Judicial Circuit,4 and attorneys for

each of the following three witnesses:

•042Dept. of Highway Safety & Motor Vehicles -- employee with the most knowledge of the driver license database

•042 systems analyst with the mostPolk County Information Technology -knowledge of the jury management software

•042Clerk of the Circuit Court - by statute and administrative order, the person responsible for jury management in Polk County.

[Appendix C, Petitioners' Notice of Depositions].

3 Honorable William Cervone, State Attorney was designated by the Governor in place of the Tenth Circuit State Attorney, whose office had a conflict of interest on re-trial. 4 Assistant State Attorney Victoria Avalon represents the State in State v. Willie Johnson.

Johnson v. State Petitionfor Certiorari, page 5.

5. Thereafter, both the Clerk of Court and the Polk County IT

systems analyst engaged attorneys who notified the parties that they

intended to appear not only at their clients' depositions, but also at the

depositions of all of the other witnesses as well. [Appendix D-1, letter from

attorney Trohn on behalf of the Hon. Stacy Butterfield, Clerk; D-2 letter

from attorney Kevin Ashley on behalf of Laura Hayes, Polk County IT

analyst; D-3, response on behalf of both Petitioners].

6. The Witnesses filed their Joint Motion For Entry Of Order

Allowing Attendance Of Counsel At Discovery Depositions. [Appendix E].

Petitioners filed their Objection and Motion for a Protective Order

[Appendix F, Petitioners' Objections and Motion for Protective Order].

7. The trial court conducted a hearing on both motions. [Appendix

G, Transcript of hearing held August 28, 2013. Neither State Attorney

expressed a concern or an objection to the witnesses' attorneys' attendance

at the other depositions. [TR, p. 20, 1. 18 - p. 23, 1. 2].

8. While the trial court initially declined to enter a written order, it

has recently done so. [Appendix H, Order on Joint Motion for Entry of

Order Allowing Attendance of Counsel at Discovery Depositions, dated

November 20, 2013].


9. Petitioners have engaged the services of a statistical expert and

are in the process of setting and agreed date for his deposition. The trial

court has directed that all depositions be "accomplished" by "Tues,

12.17.13." [Appendix I, "Snapout" of hearing dated 11-20.13]

Jurisdictionalfacts: Willie Johnson

10. Willie Johnson was charged with the crime of Failure to Retum

Leased Property. The jury returned a verdict of Guilty on April 17, 2013.

[Appendix J, verdict, State v. Willie Johnson].

11. Willie Johnson also filed his timely Motion for New Trial

complaining that the newly disclosed jury venire abnormalities caused his

verdict to be contrary to both the jury statute and our Constitutions.

[Appendix K, Willie Johnson's Motion for New Trial].

12. Because the issues in both of these otherwise unrelated Johnson

cases are identical on the jury venire issue, the trial court consolidated the

cases for resolution before the capital division of the Circuit Court; hence

this joint petition. [Appendix L, Order Consolidating Cases].

This Court can exercisejurisdiction

Jurisdiction: State v. Paul B. Johnson. The people of Florida have

conferred upon his Court exclusive jurisdiction to review death cases. Fla.

Johnson v. state Petitionfor Certiorari, page 7.

http:11-20.13http:12.17.13

Const. Art. V, Sec. 3(b)(1). In several cases, this Court has made crystal

clear that its death-penalty jurisdiction extends, of necessity, to "cases in

which this Court has vacated a death sentence and remanded for further

penalty proceedings." This is such a case. State v. Matute-Chirinos, 713 So.

2d 1006, 1008 (Fla. 1998) quoting, State v. Fourth District Court ofAppeal,

697 So. 2d 70, 71 (Fla. 1997):

In order to clarify our position, we now hold that in addition to our appellate jurisdiction over sentences of death, we have exclusive jurisdiction to review all types of collateral proceedings in death penalty cases. This includes cases in which this Court has vacated a death sentence and remanded for further penalty proceedings. However, our jurisdiction does not include cases in which the death penalty is sought but not yet imposed, State v. Preston, 376 So.2d 3 (Fla.1979), [an interlocutory pre-trial appeal by a defendant who was charged, but not convicted of first degree murder]. or cases in which we have vacated both the conviction and sentence of death and remanded for a new trial.

[Emphasis added].

Paul B. Johnson's situation precisely fits the foregoing description of

this Court's death-penalty jurisdiction. This Court vacated only the death

penalty, and his case was remanded for "further proceedings."

Moreover, this Court has applied the same jurisdictional analysis to

certiorari review of discovery orders in death cases that are in the posture of

this case. See, Trepal v. State, 754 So. 2d 702, 707 (Fla. 2000). As will be

shown, these consolidated cases present just such a cat-out-of-the-bag


discovery matter as was decided in Trepal. As in Trepal, the Order allowing

attendance at the depositions also does not conform to the essential

requirements of law and may cause irreparable injury for which appellate

review will be inadequate. Id. See also, Asay v. Parole Com'n, 749 So. 2d

859 (Fla. 1994) ("We have on appeal the denial of claims by numerous

death-sentenced inmates seeking disclosure of records kept on behalf of the

Florida Board of Executive Clemency. We have jurisdiction pursuant to our

plenary and exclusive appellate authority over cases involving death

sentences. Art. V, § 3(b)(1), Fla. Const.; see Gerald Kogan & Robert Craig

Waters, The Operation and Jurisdiction of the Florida Supreme Court, 18

Nova L. Rev. 1151, 1211-12 (1994)." [Footnote omitted]. Other cases in

which this Court adjudicated discovery or related disputes in post-conviction

capital cases include: State v. Kokal, 562 So.2d 324, 326 (Fla. 1990); State

Lewis, 656 So.2d 1248, 1250 (Fla. 1994); and Roberts v. State, 840 So.2d

963, 63 (Fla. 2003). In Malt v. Simmons, 405 So.2d 1018, 1019 (Fla. 4th

DCA 1981) the court held that certiorari was an appropriate vehicle for

testing the correctness of an order governing discovery procedures, but that

it should be granted only "where the order of the trial court is a departure

from the essential requirements of law and there would be no adequate

remedy be appeal." [Citations omitted].


Jurisdiction: State v. Willie Johnson. It goes without saying that

Willie Johnson's case would not come directly to this Court except under

these special circumstances. The trial court chose to consolidate his case

with Paul Johnson's to efficiently and expeditiously resolve the jury venire

issue. This Court clearly has exclusive jurisdiction of Paul Johnson's case

and any decision in that matter automatically becomes the law of the case for

Willie Johnson as well.

Additionally, there are two other independent reasons why jurisdiction

is appropriate here. First, a jurisprudential morass would be created if Willie

Johnson's case were to be transferred to the District Court. The risk of

inconsistent decisions, of different decisional timelines and of inordinate

delay caused by the right to further review, all militate in favor of this

Court's decision. Second, this Court has long held that once it acquires

jurisdiction in a matter, it has the discretion to resolve all properly briefed

issues contained in that matter. Savoie v. State, 422. So.2d 308, 310 (Fla.

1982); Price v. State, 995 So.2d 401, 406 (Fla. 2008); See also, Capone v.

Philip Morris USA, Inc., 116 So.3d 363, 369 (Fla. 2013).


ARGUMENT

THE EXCLUSIONARY RULE APPLIES TO ALL COURT "PROCEEDINGS," INCLUDING DISCOVERY DEPOSITIONS

Clearly, this Court may exercise jurisdiction, and it should. It

should because Florida litigants and lawyers need clear guidance on this

important issue. Moreover, it is axiomatic that if the exclusionary rule has

fostered the truth-seeking process in the courtroom for centuries, why should

it not do so in the deposition room? The two competing cases so often cited

at the trial level by the competing interests were both decided long before

the "Rule" was codified in Florida's evidence code.5

If the Rule of Sequestration applies to depositions, the burden is

clearly on the advocate for attendance by a non-party, non-deponent to

convince a judge to find an enumerated exception to the mandatory

application of the Rule; that is, to show that the non-party, non-deponent's

"presence . . . is essential to the presentation of the party's cause." Fla. Stat.

§ 90.616(c). [Emphasis added]. Of course, that hearing must precede the

deposition.

s Chapter 90, Fla. Stat., Florida's Evidence Code, has been mostly adopted as a rule of this Court "to the extent it is procedural." See, In re Florida Evidence Code, 373 So. 2d 1369 (Fla. 1979) and 376 So. 2d1161 (Fla. 1979) and 404 So. 2d 743 (Fla. 1981) and 497 So. 2d 239 (Fla. 1986) and 683 So. 2d 920 (Fla. 1994).


On the other hand, if the Rule does not apply, then any non-party,

non-deponent is free to attend a deposition unless an opponent of attendance

aborts the deposition to obtain a protective order pursuant to Fla. R. Civ. P.

1.280 excluding the person because his or her presence would cause

"annoyance, embarrassment, oppression or undue burden or expense." Fla.

R. Civ. P. 1.280(c). In today's litigation environment the meaning of these

magic terms of art is murky at best - especially murky when measured

against the countervailing rule's language, "essential to the presentation of

the party's cause." Fla. Stat. § 90.616(c).

Applied literally to the instant cases, the effect of the trial court's

ruling is a finding that the Petitioners failed to show that they were annoyed,

embarrassed, oppressed, unduly burdened or suffered undue expense by the

witnesses' presence. On the other hand, if the trial court sub silento found

the Rule to apply, then the witnesses must have satisfied their burden to

demonstrate that their presence at all the depositions "was essential to the

presentation of the party's cause." Just what role non-party witnesses should

have in determining presentation of a party's cause is puzzling indeed.

Practical considerations. Obviously, Florida has no default position

- no clear guidance to practitioners regarding who may attend depositions.


Accordingly, the first question for this Court's consideration is, Should be

there a rule, or is the chaotic status quo the best practice?

Unfortunately, the absence of clear guidance occasionally causes

volatile deposition conditions. If one attorney unexpectedly appears with a

non-party, non-deponent at the depositions, the opponent of attendance is

forced to stop the deposition, find a judge who is available to hear the

motion to exclude. See, rule 1.280(c) "(5) that discovery be conducted with

no one present except persons designated by the court." That is apparently

exactly what happened in both of the countervailing cases Dardashti v.

Singer, 407 So. 2d 1098 (4th DCA 1981) and Smith v. Southern Baptist

Hospital ofFlorida, 564 So.2d 1115, 1116 (Fla. 1** DCA 1990), except that

in Smith the stoppage and oral motion to the judge to exclude occurred

"[o]ne hour into Dr. Murray's deposition. . . ." Alternatively, locked doors

and surreptitious deposition locations have been known to sometimes

obviate the need for court involvement.

The two opposing District Court views. Significantly, these two

cases were decided before the codification of the unwritten Rule of

Sequestration into either the evidence code or a written rule of court, but

they set the stage for the variable outcomes that continue to occur

throughout Florida. While a careful reading of these two cases shows that


they are not precisely in direct conflict, journal articles and a leading text

suggest otherwise.'

Decided first, Dardashti v. Singer, contains three pertinent very clear

holdings: 1) Failure to exclude a non-party witness from attending a

discovery deposition is an abuse of discretion "and that prejudice will result

therefrom which cannot be remedied by plenary appeal." Id. 1099, 1100. 2)

That the attendance of a non-party witness at a deposition will cause [s]uch a

shading of testimony is a definite present threat under the facts presented in

this petition." Id. 1099. 3) Finally, the Dardashti court found especially

strong reasons why the Rule should be applied in discovery depositions:

This is so because they [the witnesses] can have little advance warning during a deposition of unexpected and oblique questions requiring instantaneous response. To permit the one to sit and absorb the answers of the other in a case such as this obviously facilitates the very "coloring of a witness's testimony" frowned on by our Supreme Court in Spencer to the point where we find it carries the burden placed by Spencer on the complaining party to demonstrate an abuse of discretion. Moreover the result would be clearly prejudicial and not capable of remedy by plenary appeal. This is especially so when, as here, the trial judge's order failed to make a finding as to why "no real prejudice would result from (failure to exclude)" as this very court suggested should be done in Thomas v. State, 372 So.2d 997, 999 (Fla. 4th DCA 1979). As we said in Thomas, supra:

6 C. Ehrhardt, Florida Evidence, §615.1 (2013 Ed.) ("Prior to the enactment of section 90.616, there was disagreement as to whether sequestration was available during discovery depositions." (Citing these cases); Rendzio, Invoking "the Rule" During Depositions? Absolutely "Maybe," 82 Fla. Bar J. 54 (Mar. 2008); Flynn, Invoking What Rule? 24 Nova L. Rev. 367 (1999).


To have it otherwise would emasculate the rule of exclusion and sequestration of witnesses and subject the trial courts to attack alleging collusion among witnesses.

The clear holding of Dardashti that the Rule promotes the truth-seeking

process is supported by centuries of trial experience and can be no less true

for depositions.

The rule of sequestration is time-honored and efficacious.

Codified as a rule of evidence in Fla. Stat. §90.616, the rule is now

mandatory on request. Ehrhardt, supra § 616.1 (". . . sequestration is

demandable as a matter or right." (citing, Hernandez v. State, 4 So.3d

642, 662 (Fla. 2009)). More importantly, it is now applicable to all

"proceedings" as well as trials and hearings. As to the applicability of the

Rule at depositions, Ehrhardt states: "Though section 90.616 does not

explicitly apply during depositions, the concerns it addresses obviously

apply to deposition testimony." Id. § 616.1, note 4.

"The sequestration of witnesses has been a part of Florida trial

practice since at least 1906. [William R. Eleazer & Glen Weissenberger,

Evidence: 1999 Courtroom Manual 425 (1999)]. The purpose of the

sequestration rule is to 'avoid the coloring of a witness's testimony by

that which he has heard from other witnesses.' [Spencer v. State, 133 So.

2d 729, 731 (Fla. 1961)]." Michael Flynn, Invoking What Rule? 24 Nova


L. Rev. 367 (1999). After the codification of the ancient rule, this Court

explained the long history and salutary purpose of the rule in Hernandez

v. State, 4 So. 3d 642, 661 (Fla. 2009):

The practice of sequestering witnesses has been used for centuries, and it came to the United States as part of our inheritance of the common law. See 6 John Henry Wigmore, Evidence in Trials at Common Law § 1837, at 455-56 (James H. Chadbourn rev., 1976). The United States Supreme Court has described its purpose as two-fold: "It exercises a restraint on witnesses 'tailoring' their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid." Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); see also Knight v. State, 746 So.2d 423, 430 (Fla.1998) ("The purpose of the rule of sequestration is 'to avoid a witness coloring his or her testimony by hearing the testimony of another,' thereby discouraging 'fabrication, inaccuracy and collusion.' " (quoting Charles W. Ehrhardt, Florida Evidence § 616.1, at 506 (1998 ed.))).

Under the common law, this Court emphasized the discretionary nature of the trial court's decision to exclude witnesses from the rule of sequestration. See, e.g., Randolph v. State, 463 So.2d 186, 191 (Fla.1984) ("The trial judge is endowed with a sound judicial discretion to decide whether particular prospective witnesses should be excluded from the sequestration rule.").

[Emphasis added throughout].

The rule is old in the law, and over the centuries it has been found

to add to the reliability of the truth-seeking process at trial. In its

original common-law embodiment - ingrained in the federal law - its

"discretionary nature" was emphasized. Id. 662.

Johnson v. state Petition for Certiorari, page 16.

However, under today's statutory rule, application of the rule is

mandatory upon request, it applies to all "proceedings" not just trials;

and "exclusions" from the application of the rule are limited to four

categories of witnesses. Accordingly, care must be taken to rely only

upon authorities interpreting the modern Florida rule of evidence

embodied in Fla. Stat. § 90.616, and not the decisions relying on

common law interpretations of the ancient Rule.

Dardashti is the law of Florida unless a contrary opinion exists.

None does, but the actual holding of Smith v. Southern Baptist Hospital of

Florida, 565 So.2d 1115 (Fla. 1st DCA 1990) must be carefully analyzed

to appreciate the lack of direct conflict?

The retired associate judge who authored Smith simply

announced that the Rule has "never been adopted by the supreme court

as a written rule. Moreover, this unwritten rule is applicable at trial of

cases, not depositions." Id. 1117. The he also neglected to consider the

fundamental reason for the existence of the Rule and the centuries of

experience with its salutary purpose, and with the obvious fact that "the

7 The Smith court certified conflict, but there is no record of an actual conflict filing in this Court; perhaps because there was no actual conflict.

Johnson v. state Petition for Certiorari, page 17.

concerns it addresses obviously apply to deposition testimony."

Ehrhardt, supra. n. 4.

However the direct holding of the case is that the trial judge did

not abuse his discretion when he denied an oral motion, made "one

hour into" the deposition to exclude a non-party, non-deponent from

attendance, because "the deposition had been progress for

approximately one hour before plaintiff's counsel attempted to invoke

the exclusionary rule, and further the defendant Board of Regents of the

State of Florida is a defendant in the law suit solely because of the

alleged negligence of [the non-party, non-deponent]" Id. 1116. It is

significant that the non-party who attended the deposition was not

included as a party defendant solely by virtue of Florida's sovereign

immunity statute.

Another District Court "recognize[d] the long-adhered to principle

behind the rule allowing the sequestration of witnesses" in the

deposition context, in deciding that the "venerated principle that a party

has the right to be present at an oral deposition" trumps the exclusion of

a non-deponent from a deposition. Ferringo v. Yoder, 495 So.2d 886,

888 (Fla. 2d DCA 1986). Of course, the witnesses in this case are not,

and could never be, parties in these criminal cases. Ferringo is


instructive because of its correct determination that the trial court's

ruling on the presence of a person at a discovery deposition is

appropriate for certiorari review because it was a departure from the

essential requirement of law for which there was no legal remedy. Id.

887.

Certainly the typical requirements for certiorari jurisdiction

apply, but this case is not about reviewing judicial discretion. The trial

court should have, but did not determine that the Rule applies to

depositions. If it had, and then further determined that one of the four

categories of exceptions applied, this Court's deference to judicial

discretion would be appropriate. Instead, the trial court ignored the

application of the Rule to all "proceedings" and ignored that it is to be

enforced as of right. "Florida does not allow such discretion on the part

of the trial courts to ignore the Rules of Evidence or the Rules of Civil

Procedure. Failure to follow the Rules constitutes an error of law, not an

abuse of discretion." Castaneda v. Redlands Christian MigrantAssoc., Inc.,

884 So.2d 1087, 1093 (Fla. 4th DCA 2004). This Court followed that

principle in Pantoja v. State, 59 So.3d 1092, 1095 (Fla. 2011) (A judge's

erroneous interpretation of the evidence code and applicable case law is

subject to de novo review).


The trial court's findings did not include any of the Rule's

requirements that the witnesses' presence was essential to the

presentation of a party's cause. In contrast the witnesses stated reason

for attendance demonstrates exactly the evils that the Rule is

historically designed to eliminate. Attorney Trohn on behalf of the

witnesses stated at TR, p. 24, l. 24 - p. 25,1. 13:

MR. TROHN: And I want to say one other thing that might make this case a little bit unique, and that is that although my client isn't a party, she is an elected public official, and I have no doubt that since what Mr. Young is planning is an evidentiary hearing, is that her testimony will be made public and it will be used in a way that will be available to the public. So she has a very keen interest in her testimony and I believe she has a right to have some idea of what the questions will be about and not have to be completely blind-sided. And for those reasons, Your Honor, I believe there is good cause even if it is our burden to show, which, I agree with MR. ASHLEY, it is not.

[Emphasis added].

In sum, the witnesses' reasons for wanting to attend constitute the

opposite of good cause; rather, they are the precise reason why the Rule

exists, as explained in Dardashti.


Conclusion

The trial court departed from the essential requirements of law

when it failed to apply the Rule to depositions as "proceedings," and it

likewise failed to find the statutory exceptions that would make the Rule

inapplicable. Instead, the trial court merely found: "that it is appropriate

in this instance" for these non-parties, non-deponents to attend all the other

depositions. As the cases hold, a non-party's unauthorized attendance at a

deposition constitutes a harm that cannot be corrected on appeal.

Accordingly, this Court should, after allowing the witnesses an opportunity

to respond, grant certiorari and reverse the trial court's decision that the non-

party, non-deponent witnesses can attend all the other witnesses depositions.


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original of this Petition for Writ of Certiorari was e-filed with the Clerlc and a copy delivered to the Hon. Donald G. Jacobsen, Circuit Judge, and Ms. Victoria Avalon, Assistant State Attorney, Bartow, FL and a copy delivered by e-mail to Hon. William Cervone, Esq., State Attorney, Eighth Judicial Circuit at [email protected]; Mr. Jonathan Trohn, Esq. attorney for Butterfield at [email protected]; Mr. Kevin Ashley, Esq., attorney for Hayes at [email protected]; and to Mr. Michael Alderman, Deputy General Counsel, DHSMV, attorney for Frederick at [email protected], this 2_a,_iay of November, 2013.

HOWARD L. DIMMIG, II Public Defender

Éobert A. Young,JÍ3N 14482 General Counsel Anthony DiMillo, FBN 64786 Assistant Public Defender Attorney for Willie Johnson Howardene Garrett, FBN 274941 Assistant Public Defender Attorney for Paul B. Johnson Post Office Box 9000-PD Bartow, FL 33831-9000 (863) 534-4258 voice (863) 534-4355 fax [email protected]

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

IN THE SUPREME COURT OF FLORIDA...Matute-Chirinos, 713 So. 2d 1006, 1008 (Fla. 1998) quoting, State...

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