No. 87-938.District Court of Appeal of Florida, Fifth District.
January 14, 1988.
Appeal from the Circuit Court, Orange County, Thomas S. Kirk, J.
James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee.
The juvenile defendant appeals an adjudication of delinquency on charges of aggravated battery, battery and petit theft. We reverse.
The trial court erred in admitting into evidence, for substantive purposes, the discovery deposition of the alleged victim. Depositions taken for purposes of discovery may not be used as substantive evidence in a criminal trial. State v. James, 402 So.2d 1169 (Fla. 1981). The state concedes the Rules of Juvenile Procedure, like the Rules of Criminal Procedure, provide that a deposition taken for discovery purposes may be used only “for the purpose of impeaching the testimony of the deponent as a witness.” Fla.R.Juv.P. 8.070(d)(3). Cf. Rule 8.070(e).
Because the trial court expressly relied on the deposition in determining delinquency, we cannot agree with the state’s contention that the error in admitting the deposition was harmless beyond a reasonable doubt. Because the evidence is otherwise insufficient to support the adjudication, we reverse with directions to discharge the defendant.
UPCHURCH, C.J., and COBB, J., concur.