DOUGLAS ROBERT HOTCHKISS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed a conviction for possession of narcotics paraphernalia because the trial judge improperly excluded a defense witness as sanction for counsel's discovery violation, holding that punishment of the defendant violates the rule against visiting counsel misconduct on the client.
A trial court may not exclude a defense witness as punishment for counsel's failure to disclose the witness under Florida Rule of Criminal Procedure 3.220 when no prejudice to the state is shown and exclusion may prejudice the defendant.
[1] A trial court may not exclude a defense witness as sanction for counsel's discovery violation when the state shows no prejudice and the exclusion may prejudice the defend…
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Court explaining that sanctions for counsel misconduct cannot be imposed on the client when no state prejudice is shown
Hotchkiss was convicted of possession of narcotics paraphernalia. Defense counsel failed to disclose a defense witness to the state despite receiving …
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DAUKSCH, Judge.
A conviction for possession of narcotics paraphernalia is appealed because the trial judge ruled a defense witness could not testify. Florida Rule of Criminal Procedure 3.220 requires an accused to provide a list of his witnesses if he demands and receives from the state a list of the prosecution witnesses. Here defense counsel failed to disclose to the state the name of a witness known to the defendant. On the trial date defense counsel said he was going to call the witness and asked the court to delay the trial long enough to allow the state to depose the witness and investigate her story. The trial judge was disturbed by this and because this same lawyer had upon other occasions caused problems because of lack of preparation and in this very ease had received a continuance to investigate further, the judge felt the best sanction would be the exclusion of the witness. We agree the conduct, past and present, of trial counsel 1 was reprehensible and the lawyer deserved to be dealt with harshly, but we cannot visit the punishment on the defendant, in this case. There was no prejudice to the state shown and it is quite possible the exclusion of the witness’ testimony resulted in prejudice to the appellant. Richardson v. State, 246 So. 2d 771 (Fla.1971).
The conviction for possession of paraphernalia is reversed and this cause is remanded for new trial on that count. The conviction and sentence on Count I is affirmed.
REVERSED and REMANDED.
DOWNEY, C. J., and ANSTEAD, J., concur. . Counsel on appeal were not trial counsel.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Patterson v. State, 419 So. 2d 1120 (Fla. 4th DCA 1982)…n to exclude evidence in order to remedy a discovery violation. . Numerous appellate panels have addressed fact situations similar to that in the present case and have concluded that exclusion was too severe a remedy. See, e.g., Hotchkiss v. State, 367 So. 2d 727 (Fla. 4th DCA 1979); Williams v. State, 264 So. 2d 106 (Fla. 4th DCA), cert. denied, 268 So. 2d 162 (Fla.1972); Adams v. State, 366 So. 2d 1236 (Fla. 2d DCA 1979); State v. Bowers (Fla. 2d DCA Case No. 82-359, June 2, 1982) [7 F.L.W.D.C.A. 1203]; St…
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Lewis v. State, 411 So. 2d 880 (Fla. 3d DCA 1981)…t compelling circumstances. Williams v. State, 264 So. 2d 106 (Fla. 4th DCA), cert. denied, 268 So. 2d 162 (Fla.1972). A defendant should not be hampered in his defense by being subjected to punishment intended for trial counsel. Hotchkiss v. State, 367 So. 2d 727 (Fla. 4th DCA 1979); Wilson v. State, 220 So. 2d 426 (Fla. 3d DCA), cert. denied, 225 So. 2d 921 (Fla.1969). For these reasons, I would reverse the conviction and remand for a new trial. . Defendant Lewis is represented by different counsel on app…
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Livingston v. State, 575 So. 2d 1349 (Fla. 4th DCA 1991)…ng circumstances. Lee v. State, 534 So. 2d 1226 (Fla. 1st DCA 1988); Baker v. State, 522 So. 2d 491 (Fla. 1st DCA 1988); Patterson v. State, 419 So. 2d 1120 (Fla. 4th DCA 1982); Adams v. State, 366 So. 2d 1236 (Fla. 2d DCA 1979); Hotchkiss v. State, 367 So. 2d 727 (Fla. 4th DCA 1979). The excluded witness was appellant’s only witness and the record reflects that his testimony would have been material. Furthermore, the record indicates that appellant was unaware of the witness prior to trial. Under the circum…
Authorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)