#### James Lyn P. LUNETTO, Petitioner, v. STATE of Florida, Respondent.

No. 72-641.

District Court of Appeal of Florida, Second District.

March 9, 1973.

*252Raymond E. LaPorte, Tampa, for petitioner.

Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for respondent.

LILES, Acting Chief Judge.

Petitioner was tried and acquitted for possession of barbiturates and marijuana in the Court of Record in and for Hills-borough County. Following the trial, he filed a motion pursuant to F.S. § 939.06, F.S.A., to be reimbursed for costs incurred by him in the defense of his cause. The motion was denied and petitioner petitioned for certiorari in this court and certiorari was subsequently granted.

Petitioner sets forth several items which he believes are taxable costs. Among these are airplane fare to California, parking and car rental, hotel bill, meals and court reporter fees incurred in obtaining the deposition of a witness for the defense. The deposition was used at the trial and petitioner now maintains that these expenses are taxable costs.

Florida Statutes § 939.06, F.S.A., provides in part:

> “No defendant in a criminal prosecution who is acquitted or discharged shall be liable for any costs or fees of the court . If he shall have paid any taxable costs in the case, the . . . justice shall give him a certificate of the payment of such costs, with the items thereof, which, when audited and approved according to law, shall be refunded to him by the county.”

Petitioner relies on Warren v. Capuano, 269 So.2d 380 (4th D.C.A.Fla.1972), which held that costs of private process, reimbursement for mileage and per diem for out of state witness were taxable costs under F.S. § 939.06 and § 142.09, F.S.A. In that case the state entered a nolle prosequi but here the petitioner was tried and acquitted.

We do not here set forth what costs should be taxed since it is our view that this decision should be «made by the trial judge. It should be made pursuant to the above-quoted statute as interpreted in *Capuano, supra.*

Writ of certiorari granted and the cause remanded for further proceedings not inconsistent herewith.

HOBSON, J., concurs.

McNULTY, J., concurs specially with opinion.

McNULTY, Judge

(concurring specially).

I agree that petitioner is entitled to reimbursement of “taxable costs” expended by him prior to his acquittal. But I wish to emphasize that I do not understand the majority to hold that the costs and expenses of deposing a witness in California, even if the deposition be used at trial, are *ordinarily*taxable costs. The use of such a deposition in a criminal case is, of *253course, permissible under Rule 3.190(7), CrPR, 33 F.S.A. But, pursuant to subsection (5) of that rule, such deposition shall not be used at trial if the attendance of the witness “can be procured.” Accordingly, I think, petitioner would first have had to seek the attendance of his witness under the provisions of the Interstate Extradition of Witnesses Act, Ch. 942, F.S.1971, F.S.A. If successful, then his “costs” in the premises would have been limited under the provisions thereof to “ten cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending, and five dollars for each day that he is required to travel and attend as a witness.” If, however, the witness’ attendance *could not*have been procured under that act, then I would suppose the necessary costs and expenses of availing himself of the provisions of Rule 3.190(7), supra, were necessary and taxable costs.

Here, it doesn’t appear from the record before us whether the trial court permitted the use of the deposition at trial without first requiring a showing that the witness’ attendance could not have been procured under the aforesaid extradition act. If there were no such preliminary showing then I hesitate to express a view now on whether petitioner is entitled to reimbursement for the California expenses at all, because it would seem petitioner initially had the burden of showing the necessity for utilization of Rule 3.190(7), supra. But assuming he is entitled to reimbursement for the California expenses, I have no hesitancy in opining that it should be limited to that which he would have been required to expend under the extradition act *or*the actual costs now sought, whichever is less. This is so because the accused is, as is any “litigant,” bounden to minimize necessary costs, especially if he intends to seek reimbursement of “taxable” costs from his adversary should he prevail. Any other rule on this point would tend to deter access to the courts and, thus, be contrary to public policy.