Motion for Deposition
Florida is one of the few states that permits depositions in criminal matters. As an attorney, I would encourage more states to permit taking depositions in criminal matters. Depositions close cases. In most circumstances, a deposition lets one side know that this is not a good case for trial.
In Florida, depositions in criminal proceedings are controlled by the Florida Rules of Criminal Procedure, specifically Florida Rule of Criminal Procedure 3.220(h). A DUI attorney can take the deposition of any witness listed as a category “A” in the state’s discovery exhibit as a matter of right. However, most DUI’s are misdemeanors. The ability to take a deposition in a misdemeanor case is controlled by Florida Rule of Criminal Procedure 3.220(h)(1)(D) which requires that the DUI attorney file a motion with the court stating the names of the individuals to be deposed and why it is necessary to the case.
Some County Court judges simply grant the motion without the filing of a written motion. Several Judges will just say “motion to take depositions is granted” at the first hearing. Some jurisdictions, such as Broward County, the judges almost always permit depositions in DUI cases. However, it is very rare in Miami-Dade County.
Below is a Motion for Depositions for use in a misdemeanor DUI case(or any other misdemeanor case where depositions are needed). The form is a fillable PDF so feel to download the form as is and use it as a template or make any modifications necessary.
Order on Motion for Depositions
As previously stated, some Judges will grant these motions without the defense attorney having to file a motion. Some judges will grant the motions without a hearing. Some Judges require a hearing. First, make sure that you check with the State Attorney to see if he/she has any objection to the motion. Second, call the judge’s judicial assistant to see if the judge is going to require a hearing. If the State objects or if the judge requires a hearing, you will need to get a hearing date and file a Notice of Hearing. At the hearing, bring copies of the orders with you. Note: Copies is plural. That means more than one. At the very minimum bring a copy for the state, a copy for the clerk and a copy for yourself. Bring an extra with you just in case. Remember to always provide the judge room to write additional provisions into the order.