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Fifth DCA Certifies Conflict Over Interpretation of Uniform Law to Secure Attendance of Witnesses

Posted: September 19, 2011 Filed under: Case Law, Law-Related News

Under Florida law, the decision of any of the five courts of appeal binds circuit (trial) courts across the state unless conflict exists on the point of law in question. If conflict exists, the circuit court is bound by the law of the court of appeal over the geographical territory in which the circuit court is located.

Because of this rule, the circuit court for Seminole County – in an appeal from the Seminole County Court – held that subpoenas issued in a criminal case requiring only the production of documents were not subject to the “Uniform Law to Secure the Attendance of Witnesses from Within or Without the State in Criminal Proceedings.” The court court’s affirmation of the county court’s ruling was based on decisions to the same effect by Florida’s Second and Third District Courts of Appeal because of the general rule stated at the beginning of this post. See General Motors Corp. v. State, 357 So. 2d 1045, 1047 (Fla. 3d DCA 1978); CMI, Inc. v. Landrum, 64 So. 3d 693 (Fla. 2d DCA 2010), review denied, 54 So. 3d 973 (Fla. 2011). In the first decision on the issue, the Third District held 1) the Uniform Law applies only to witnesses outside of Florida, and 2) the Uniform Law does not apply to requests that seek only the production of documents.

District Courts of Appeal infrequently review appeals from county courts after a circuit court has determined the appeal in the first instance, especially when the circuit court decided the appeal by following precedent from another district court of appeal. In CMI, Inc. v. Ulloa, No. 5D10-4079 (Fla. 5th DCA Sept. 16, 2011), however, the Fifth District Court of Appeal granted “the narrow remedy of second-tier certiorari” because it disagreed with the Second and Third Districts. The Fifth District granted second-tier certiorari because, if it did not do so, the issue would never be decided by the Florida Supreme Court. As the court explained, “[o]ne district court of appeal, as the first to address an important issue, can bind all the circuit courts throughout the state if the other districts are unwilling to disturb precedent based on the general standard of limited review in second-tier certiorari proceedings.”

Because CMI – the maker of an intoxilyzer used to administer breath tests to the defendants who issued the subpoenas for records – was not a party to the criminal cases and not otherwise involved in a legal dispute, the Fifth District concluded that serving a subpoena to CMI’s resident agent was ineffective. “The registered agent has a limited role, and is not a corporate employee or custodian of corporate records.” Thus, “the subpoena power of a Florida court over a person or legal entity which is not a party in a lawsuit does not extend beyond state lines.” “The long-arm statute does not extend the subpoena power of a Florida court to command the in-state attendance of a nonresident, non-party person or entity, or compel that person or entity to produce documents. . . . The only way to secure such out-of-state witnesses or documents in a criminal case is to follow the procedures of the Uniform Law.” (Citations omitted.)

Based on it’s rationale, the Fifth District quashed the circuit court’s order and certified conflict with the Second and Third District Courts of Appeal in order to create a jurisdictional basis for review by the Florida Supreme Court. The Fifth District’s opinion is now binding on all courts within its territorial jurisdiction, which covers the following counties: Hernando, Citrus, Sumter, Marion, Lake, Orange, Osceola, Brevard, Seminole, Volusia, St. Johns, and Putnam. Significantly, the creation of conflict also now frees county and circuit courts within the territorial jurisdiction of the First and Fourth District Courts to decide the issue as they believe their own district courts of appeal would decide the issue.

Admitted: Florida, Kansas, New Mexico (inactive)