State v. Scheuschner ( 2002 )

829 So. 2d 943 (2002)

STATE of Florida, Appellant,
v.
Andreas SCHEUSCHNER, Appellee.

No. 1D01-4630.

District Court of Appeal of Florida, First District.

October 30, 2002.

Robert A. Butterworth, Attorney General; Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellant.

Frank Tassone of Tassone & Eler, Jacksonville, for Appellee.

PER CURIAM.

This case is before us on a petition for writ of certiorari from an order declaring a mistrial and excluding the testimony of the state's key witness, Gregory Glover, in the trial of Andreas Scheuschner. See State v. Pettis, 520 So. 2d 250 (Fla.1988) (holding the district courts of appeal have the ability to review a pretrial evidentiary order where the state would suffer irreparable harm if the order were not reviewed). The trial court declared a mistrial and excluded Glover as a witness in any future trial based solely upon its determination that Glover's testimony was "not worthy of belief." Determining the credibility of witnesses, however, is within the province of the jury. See Davis v. State, 703 So. 2d 1055 (Fla.1997). The trial court violated this clearly established principle of law, and, unless corrected, the erroneous ruling will cause material injury to the state, which will not be susceptible to correction by appeal following the entry of a final judgment because an acquittal would preclude the state from seeking review. Thus, we grant the petition, reverse the trial court's order insofar as it excludes Gregory Glover as a witness in any future trial of Andreas Scheuschner, and remand for further proceedings consistent with this opinion.

ALLEN, C.J., DAVIS and PADOVANO, JJ., CONCUR.