STATE v. FREUND, 473 So.2d 274 (Fla.App. 4 Dist. 1985)

STATE OF FLORIDA, PETITIONER, v. JOHN S. FREUND, JOHN TRENT, PALM BEACH NEWSPAPERS, INC., SCRIPPS-HOWARD BROADCASTING COMPANY, MIAMI HERALD PUBLISHING COMPANY, AND THE FORT LAUDERDALE NEWS AND SUN SENTINEL, RESPONDENTS.

No. 85-687.District Court of Appeal of Florida, Fourth District.
July 31, 1985.

Petition for review from the Circuit Court, Palm Beach County, Marvin Mounts, Jr., J.

Pablo Perhacs, Asst. State Atty., West Palm Beach, for petitioner.

L. Martin Reeder, Jr., D. Culver Smith, III, and Thomas R. Julin of Steel Hector Davis Burns Middleton, Palm Beach, for respondents — Palm Beach Newspapers and Scripps-Howard Broadcasting.

Janice Burton Sharpstein and Laura Besvinick of Sharpstein
Sharpstein, P.A., Coconut Grove, and Richard J. Ovelmen, Gen. Counsel, Miami for respondent — Miami Herald.

Page 275

Ray Ferrero, Jr. of Ferrero, Middlebrooks Strickland, Fort Lauderdale, for respondents — Fort Lauderdale News and Sun Sentinel.

PER CURIAM.

The trial court permitted media attendance at pretrial depositions in a criminal proceeding pursuant to our sister court’s holding in Short v. Gaylord Broadcasting Co., 462 So.2d 591
(Fla. 2d DCA 1981). Since then this court announced its en banc decision in Palm Beach Newspapers, Inc. v. Burk, 471 So.2d 571
(Fla. 4th DCA 1985), which takes the opposite view fro Short and which must govern the case at bar. Accordingly, we grant the writ and quash the trial court’s order on the authority of our en banc decision in Burk.

WRIT ISSUED.

HERSEY, C.J., and HURLEY, J., concur.

LETTS, J., concurs specially with opinion.

LETTS, Judge, specially concurring.

I agree that Burk, supra, governs this case. However, while considering the particular matter now before us, I realize that the statement by the Florida Supreme Court in Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla. 1982), that “[t]here is no first amendment protection of the press’ rights to attend pretrial hearings” is suspect, if it relies, as it appears to, o Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). If the Florida court continues to be of the same mind when it addresses the issue of pretrial depositions, it should not, as I did in Burk when I quoted Lewis, rely o Gannett. The Gannett decision, while admittedly equivocal, is clarified in a later United States Supreme Court case where it is confirmed that the media has in fact a “qualified” first amendment right to attend pretrial suppression hearings. Waller v. Georgia, ___ U.S. ___, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).

I would also certify this particular case. True, to do so should be an unnecessary exercise because of Jollie v. State, 405 So.2d 418 (Fla. 1981). However, the issue is certainly of great public importance, the certification has been requested, and it makes it that much easier for the litigants if we do so.