BRADFORD GLENN MCDONNOUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bradford McDonnough was convicted of aggravated battery and robbery after trial. The appellate court reversed and remanded because the trial court failed to conduct an adequate inquiry into the state's violation of discovery rules by not listing a rebuttal witness on its witness list before trial.
The trial court's discretion to allow a witness to testify despite non-compliance with discovery rules can only be properly exercised after an adequate inquiry into the surrounding circumstances, including whether the violation was inadvertent or willful, whether it was trivial or substantial, and what effect it had on the defendant's ability to prepare for trial. Because the trial court made no such findings here, the conviction must be reversed and the case remanded for a new trial.
[1] A trial court must conduct an adequate inquiry into the circumstances surrounding a discovery violation before exercising its discretion to allow a witness to testify.
[2] An adequate inquiry into a discovery violation must at least consider whether the violation was inadvertent or willful, whether it was trivial or substantial, and its eff…
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Join FLexlaw to unlock all legal intelligence“If it is brought to the attention of the trial court that a party has failed to comply with the criminal rules of procedure, then the trial court may exercise its discretion in determining whether the non-compliance would prejudice the defendant. However, the court's discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances.”
Establishes the standard that trial courts must conduct an adequate inquiry before exercising discretion regarding procedural violations
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Join FLexlaw to unlock all legal intelligenceMcDonnough filed a notice of intention to claim alibi more than ten days before trial. During trial, the state provided the defense with a copy of pol…
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COBB, Judge.
Appellant McDonnough was tried and convicted of aggravated battery1 and robbery.2 He appeals the judgment. Of the points raised on appeal, we find merit in a portion of one point and will confine our opinion to that partial point.
In conformity with Florida Rule of Criminal Procedure 3.200 (1980), McDonnough filed a Notice of Intention To Claim Alibi more than ten days prior to trial. During the trial, the state gave the defense a copy of the statement of police officer Brent Papania and notified the defense that the state would be using that officer’s testimony to rebut McDonnough’s alibi. Contrary to Florida Rule of Criminal Procedure 3.220 (1980), the state had never supplied Papa-nia’s name to the defense on a witness list.
Prior to Papania taking the stand, defense counsel objected to the witness testifying since his name had not been listed on the state’s witness list. The prosecutor argued that since he had given a copy of Papania’s statement to the defense earlier in the trial, the defense was not surprised and, therefore, not prejudiced by the state’s failure to comply with the criminal rules of procedure. Based upon this short argument, and without the making of any findings, the trial court allowed Papania to testify.
If it is brought to the attention of the trial court that a party has failed to comply with the criminal rules of procedure, then the trial court may exercise its discretion in determining whether the non-compliance would prejudice the defendant. However, the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Richardson v. State, 246 So. 2d 771, 775 (Fla.1971). Such an inquiry should at least cover the questions as to whether the violation was inadvertent or willful, whether the violation is trivial or substantial, and what effect if any the violation had upon the ability of the other party to prepare for trial. Richardson at 775. See State v. Snell, 391 So. 2d 299, 300 (Fla. 5th DCA 1980).
If the trial court does not hold an adequate Richardson hearing, the appellate court cannot apply the doctrine of harmless error. Brey v. State, 382 So. 2d 395 (Fla. 4th DCA 1980); Boynton v. State, 378 So. 2d 1309 (Fla. 1st DCA), cert. denied, 386 So. 2d 642 (Fla.1980). Nor can the appellate court order a post-trial Richardson hearing. Smith v. State, 372 So. 2d 86 (Fla.1979); Miller v. State, 373 So. 2d 377 (Fla. 2d DCA 1979).
The rules of criminal procedure requiring disclosure of witnesses apply to all witnesses including rebuttal witnesses. Hicks v. State, 400 So. 2d 955 (Fla.1981); Miller v. State, 389 So. 2d 1210 (Fla. 1st DCA 1980); Miller v. State, 373 So. 2d 377 (Fla.2d DCA 1979).
In the case at hand, the inquiry into the state’s failure to provide Papania’s name on a witness list was insufficient to meet the requirements of Richardson. In view of the precedential cases cited above, we are compelled to reverse the judgment and remand this case for a new trial.
REVERSED and REMANDED.
SHARP and COWART, JJ., concur. . § 784.045, Fla.Stat. (1979).
. § 812.13(2)(b), Fla.Stat. (1979).
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State v. del Gaudio, 445 So. 2d 605 (Fla. 3d DCA 1984)…, or an order issued pursuant thereto, may subject counsel to appropriate sanctions by the court.” Although the choice of sanction is within the discretion of the trial court, see Richardson v. State, 246 So. 2d 771 (Fla.1971); McDonnough v. State, 402 So. 2d 1233 (Fla. 5th DCA 1981); State v. Lowe, 398 So. 2d 962 (Fla. 4th DCA 1981); accord, United States v. Bockius, 564 F. 2d 1193 (5th Cir. [*608] 1977),2 the appellate court may determine whether this discretion has been abused, see Filgueiras v. State, 291…
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Hickey v. State, 484 So. 2d 1271 (Fla. 5th DCA 1986)…n is trivial or substantial, and what effect, if any, the violation had upon the ability of the other party to prepare for trial. Richardson, 246 So. 2d at 775. Without such inquiry the harmless error doctrine cannot be applied. McDonnough v. State, 402 So. 2d 1233 (Fla. 5th DCA 1981). As the Florida supreme court noted in Cumbie v. State, 345 So. 2d 1061 (Fla.1977): It is clear that the trial court’s investigation of the question of prejudice was not the full inquiry Richardson requires. No appellate court c…
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Donahue v. State, 464 So. 2d 609 (Fla. 4th DCA 1985)…as trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the [other party] to properly prepare for trial.” Id. at 775; see also Haversham v. State, 427 So. 2d 400 (Fla. 4th DCA 1983); McDonnough v. State, 402 So. 2d 1233 (Fla. 5th DCA 1981). The rule’s immediate purpose is to ensure the development of a factual predicate in the record and, thus, enable the court to exercise its discretion in a considered, deliberate fashion. The rule’s ultimate purpose is to ensure…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Smith v. State, 372 So. 2d 86 (Fla. 1979)
- Brey v. State, 382 So. 2d 395 (Fla. 4th DCA 1980)
- State v. Snell, 391 So. 2d 299 (Fla. 5th DCA 1980)
- Hicks v. State, 400 So. 2d 955 (Fla. 1981)
- Miller v. State, 373 So. 2d 377 (Fla. 2d DCA 1979)
- Smith v. Smith, 378 So. 2d 1309 (Fla. 4th DCA 1980)
- Boynton v. State, 378 So. 2d 1309 (Fla. 1st DCA 1980)
- Miller v. State, 389 So. 2d 1210 (Fla. 1st DCA 1980)