Gallagher v. State
The Fourth DCA granted a pro se attorney-defendant's second certiorari petition, quashing the trial court's denial of her motion to perpetuate the testimony of out-of-state, medically fragile witnesses under Florida Rule of Criminal Procedure 3.190(i). The court held that once the petitioner satisfied the rule's requirements—verified affidavits showing the witnesses reside out of state, may be unavailable at trial, and that their testimony is material—the trial court departed from the essential requirements of law by denying the motion based on unsupported claims of inadmissibility rather than addressing materiality as the rule requires.
Key facts
- Attorney-defendant sought to perpetuate testimony of out-of-state, medically fragile witnesses under Florida Rule of Criminal Procedure 3.190(i) by filing a motion with verified affidavits establishing the witnesses' out-of-state residence, material testimony, and potential unavailability at trial.
- The trial court denied the motion based on the State's assertion that the testimony would be inadmissible, without addressing whether the rule's requirements for materiality and unavailability were satisfied.
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Why it matters
This opinion gives criminal practitioners a clear roadmap for compelling perpetuation of testimony under Rule 3.190(i): once affidavits establish materiality, out-of-state residence, and potential unavailability, the… — full analysis with a trial
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