NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

STATE OF FLORIDA, ) ) Petitioner, ) ) v. ) Case No. 2D15-4926 ) Z.A., a child, ) ) Respondent. ) ) Opinion filed July 15, 2016.

Petition for Writ of Certiorari to the Circuit Court for Lee County; Nicholas R. Thompson, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Lisa Martin, Assistant A ttorney General, Tampa, for Petitioner.

A ndrew J. Banyai of Aiken, O'Halloran & Banyai, Fort Myers, for Respondent.

VILLANTI, Chief Judge.

The State of Florida petitions this court for a writ of certio rari quashing the

trial court's orders directi ng: (1) the depositions of two witn esses to occur in Lee County, and (2) the State to reimburse the defense for costs associated with deposing the two- 2 - witnesses. Because the trial court did not have the authority under the facts of this case to enter such an order, we grant the petition. The deponents in question, referred to here as Mr. and Mrs. A, were residents of Lee County at the outset of the underlying juvenil e delinquency case, and the defense attempted to subpoena them at their Lee County resi dence with notices to appear for deposition in Lee County. But, by the time they wer e actually served with subpoenas, Mr. and Mrs. A had moved to a new permanent residenc e in Orange County. They were at their Lee County residence, only by happe nstance, to finish packing their remaining belongings when they were served. Prior to the deposition, Mr. A contacted the assistant state a ttorney to inform the State that he and Mrs. A had moved to Orange County. The assistant state attorney told Mr. A that it was her "understanding that the dep osition is supposed to be done where [the deponents] live" and advised Mr. A. that she di d not "know enough about this," but that she would "research this and . . . get ba ck to [Mr. A] on it." Following this conversation, the assistant state attorney did n ot "get back" to Mr. A prior to the scheduled depositions to tell him for sure whether he an d Mrs. A would have to attend their depositions in Lee County. Nor did the State cont act defense counsel to object to the location of the deposition or file a motion to qu ash the subpoena for deposition. Then, after Mr. and Mrs. A failed to appear in Lee County for their depositions at which defense counsel and the assistant state at torney were both present, defense counsel filed a motion for order to show cause based upon the deponents' nonattendance. Following a hearing on the motion an d based solely on its- 3 - erroneous belief the deponents still lived in Lee County when t hey were served, 1 the trial court ordered Mr. and Mrs. A to be deposed in Lee County. Because the failure to appear for their originally sc heduled depositions was, accordin g to the trial court, ultimately due to the State's "mistake," the deponents were not found in contempt, but

the trial court ordered the Stat e to reimburse defense counsel for the expenses associated with going to the unattended depositions. This court will grant a writ of certiorari when the petitioner establishes a departure from the essential requirements of the law resulting in material injury for the remainder of the case that cannot be corrected on postjudgment appeal. Bd. of Regents v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002). "Ce rtiorari review is

available to review trial cour t orders requiring that depositio ns take place at an erroneous location." Triple Fish Am., Inc. v. Triple Fish Int' l, L.C., 839 So. 2d 913, 914 n.1 (Fla. 5th DCA 2003); see also MetroPCS Wireless, Inc. v. St ate, 120 So. 3d 1271 (Fla. 3d DCA 2013); Logitech Cargo, U.S.A., Corp. v. JW Perry, Inc., 817 So. 2d 1033 (Fla. 3d DCA 2002); Teledyne Indus., Inc. v. Mustang Ranch Airc raft, Inc., 753 So. 2d 785 (Fla. 3d DCA 2000); Ayer v. Bush, 696 So. 2d 1333 (Fla. 4th DCA 1997); Donahoo v. Matthews, 660 So. 2d 391 (Fla. 5th DCA 1995); Fortune Ins. C o. v. Santelli, 621 So. 2d 546 (Fla. 3d DCA 1993); Cady v. Laws, 341 So. 2d 1022 (Fla. 4th DCA 1977).

Certiorari review is also available to review trial court order s taxing costs against the State Attorney's Office. See State v. Nelson, 27 So. 3d 758, 7 59 (Fla. 3d DCA 2010); see also Avril v. Civilmar, 605 So. 2d 988, 988 (Fla. 4th DCA 1 992) (granting certiorari

1 Oddly, the trial court refused to defer to both lawyers who inf ormed the trial court that this fact was incorrect.- 4 - review of an order imposing sanctions against the petitioners i n the form of attorney's fees and costs for failure to negotiate in good faith during co urt-ordered mediation). Hence, both aspects of the trial court's order concerning depos ition location and cost reimbursement meet the jurisdictional requirements of certiorar i. As to the first issue, the State argues that the trial court i mpermissibly ordered the depositions to occur in Lee County when the deponen ts resided in Orange County. Florida Rule of Juvenile Procedure 8.060(d)(1)(B) clea rly states: Depositions of witnesses residing outside the county in which the adjudicatory hearing is to take place shall take place in a court reporter's office in the county and state in which the witness resides, another location agreed to by the parties, or a location designated by the court. As such, the depositions should have taken place in Orange Coun ty, where the deponents reside. The inopportune move of the deponents is of no moment; absent agreement, a new notice should have issued with a proper deposi tion location. Even if the trial court had decided to designate a location at which th e depositions would occur, the rules of statutory interpretation establish "that the 'loca tion designated by the court' is to be interpreted to mean a location within the county in wh ich the witness resides." MetroPCS Wireless, Inc., 120 So. 3d at 1273. To make matters w orse, the order to show cause was sought without r egard to whether the deponents w ould voluntarily agree to a Lee County location for their depositions. As such, and regardless of the fact that Mr. A testified at the hearing on the motion for order to show cause that he often worked in Lee County and would not have a problem attending a d eposition there, absent actual agreement, it was a violation of clearly establis hed law for the trial court to- 5 - order the depositions to be taken in Lee County when the depone nts were permanently residing in Orange County. As to the second issue, the State argues that the trial court departed from the essential requirements of the law when it ordered the State to pay the defense's costs of "taking" the aborted depositions. The State is indubi tably correct in asserting that the trial court has no authority to impose costs on the St ate Attorney's Office, even if the State commits a discovery violation. See Nelson, 27 So. 3d at 759; State v. Shelton, 584 So. 2d 1118 (Fla. 5th DCA 1991); State v. Harwood, 488 So. 2d 901 (Fla. 5th DCA 1986); State v. J.L.P., 435 So. 2d 392 (Fla. 5th DCA 19 83). At best, what happened here was a simple failure to communicate. And the onl y way that the trial court could have imposed costs would have been through initiati ng criminal contempt procedures against the assistant state attorney. See Shelton, 584 So. 2d at 1119. But the trial court in this case explicitly found that the State's actions were not "nefarious," and no charge of contempt was ever brought. As such, and in th e absence of a finding of contempt, it was clear legal error for the trial court to as sess costs against the State.

When the trial court ordered Mr. and Mrs. A to be deposed in L ee County and ordered the State to reimburse the defense for deposition c osts, it departed from the essential requirements of the law by not following controll ing authority. Accordingly, we grant the State’s petition for writ of certiorari and quash the trial court order under

review. Petition granted.

CRENSHAW and SALARIO, JJ., Concur.