JOSEPH DELMARCO, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Delmarco appeals his conviction on drug possession charges, claiming the trial judge committed reversible error by failing to conduct a Richardson inquiry into an alleged discovery violation by the prosecution. The appellate court affirmed because the trial judge was never put on notice of the discovery violation and thus had no duty to conduct the mandated inquiry.
The conviction is affirmed. The trial judge was not put on notice of a discovery violation because Delmarco's trial argument did not sufficiently apprise the court of the violation, so the requirements of Richardson v. State requiring such an inquiry do not apply.
[1] A trial judge must conduct an inquiry into a discovery violation, ascertain the degree of prejudice to the defense, and determine the appropriate sanction when made aware…
[2] A trial judge is not required to conduct an inquiry into a discovery violation if the record does not indicate the judge was put on notice of such a violation.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If a trial judge becomes aware that the State has breached the discovery provisions of the Florida Rules of Criminal Procedure, he must conduct an inquiry into the circumstances surrounding the breach, he must ascertain the degree of prejudice to the defense, and he must determine the appropriate sanction.”
Establishes the Richardson standard for trial judge obligations when discovery violations occur
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDelmarco was convicted on two counts of unlawful possession of codeine and diazepam and one count of introducing those substances into Escambia County…
The full statement of facts, procedural history, and disposition for this case are member content.
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JOANOS, Judge.
Delmarco advances a number of arguments for reversal of his conviction on two counts of unlawful possession of codeine and diazepam,1 and one count of introducing those substances into the Escambia County jail.2 Having reviewed the appellant’s lengthy brief and having heard oral argument, we affirm. We feel it is of value to address only one argument raised by appellant’s counsel, and we also feel it nec essary to comment upon the remarks of the assistant attorney general at oral argument which had no foundation in the record before us at the time.
Delmarco contends the trial judge committed reversible error by failing to conduct an inquiry into possible prejudice caused by an alleged discovery violation by the prosecutor. If a trial judge becomes aware that the State has breached the discovery provisions of the Florida Rules of Criminal Procedure, he must conduct an inquiry into the circumstances surrounding the breach, he must ascertain the degree of prejudice to the defense, and he must determine the appropriate sanction. Richardson v. State, Fla., 246 So. 2d 771 (1971). Therefore, Delmarco asserts, because a discovery violation occurred and the judge did not make an inquiry, the conviction must be reversed.
We affirm because the record does not indicate the trial judge was put on notice that a discovery violation occurred, so the requirements of Richardson do not apply. Delmarco’s trial argument on this point, did not sufficiently apprise the trial court of a discovery violation. The trial judge was never called upon to decide the point. We will not be persuaded to extend the Richardson reasoning to require that the trial judge act as the defendant’s advocate.
Further, we wish to note that at oral argument, the State’s counsel argued that certain depositions made clear that no discovery violation had occurred below; however, those depositions were not in the record on appeal, nor did they appear in designations or directions to the court reporter or clerk. Such argument is improper. We grant the motion, belatedly filed by the State shortly after oral argument, to supplement the record with those depositions. Delmarco’s attorney on appeal has used his response to the motion as an opportunity to address the substantive issue raised by the State in connection with the depositions, mitigating the possible prejudicial effect of admitting the depositions at this point. In fact, Delmarco contends that certain material contained in the depositions actually supports his position. However, because our rejection of appellant’s argument based on the Richardson case is for the reasons expressed above, the depositions have had no effect on the disposition of this appeal.
AFFIRMED.
ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH, J., concur. . § 893.13(l)(e) Fla.Stat. . § 951.22 Fla.Stat.
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Johnson v. State, 427 So. 2d 1029 (Fla. 1st DCA 1983)…ry. Richardson v. State, 246 So. 2d 771 (Fla.1971). Such an argument would be unavailing because the trial court was never put on notice that any alleged discovery violation occurred so the requirements of Richardson do not apply. Delmarco v. State, 406 So. 2d 1169 (Fla. 1st DCA 1981).…
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Augustine Daniel Chery v. State, 642 So. 2d 1161 (Fla. 3d DCA 1994)…t err in failing to conduct a Richardson hearing as no claim of a discovery violation was ever made by the defendant at trial. See Longo v. State, 580 [*1163] So. 2d 212, 215 (Fla. 4th DCA), rev. denied, 589 So. 2d 291 (Fla.1991); Delmarco v. State, 406 So. 2d 1169 (Fla. 1st DCA 1981), rev. dismissed, 415 So. 2d 1859 (Fla.1982). (d) Sufficient evidence of premeditation was adduced below. See Roberts v. State, 510 So. 2d 885, 888 .(Fla.1987), cert. denied, 485 U.S. 948, 108 S.Ct. 1123, 99 L.Ed.2d 284 (1988); Si…
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Borgess v. State, 455 So. 2d 488 (Fla. 1st DCA 1984)…not had an opportunity to rebut the allegation before a proper finder of fact. This court will not, of course, make initial factual determinations, and we therefore will not reverse on the basis of the alleged Brady violation. Cf, Delmarco v. State, 406 So. 2d 1169 (Fla. 1st DCA 1981). However, our affirmance is without prejudice to the right to raise the issue of a Brady violation in conjunction with any allegation of ineffective assistance of counsel pursuant to Fla.R.Crim.P. 3.850. Affirmed. BOOTH, J., co…
Authorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)