JOSEY WALES BALBOA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Balboa appealed his conviction on the ground that the trial court erred by denying his discovery motion without conducting a Richardson hearing to determine whether the state's failure to furnish tape-recorded witness statements caused prejudice. The court reversed, holding that witness statements are not protected by work product privilege and a Richardson hearing was required.
The court reversed, holding that tape-recorded witness statements are not protected by work product privilege under Florida Rules of Criminal Procedure Rule 3.220(c)(1), and that the trial court was required to conduct a Richardson hearing to assess whether prejudice resulted from the state's failure to disclose the recordings.
[1] Tape-recorded statements of witnesses made to state agents are discoverable under Florida Rules of Criminal Procedure and are not protected by the work product privilege.
[2] A trial court must conduct a Richardson hearing to determine prejudice when the state fails to comply with discovery rules, and cannot rely solely on prosecutorial repres…
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Join FLexlaw to unlock all legal intelligence“The term "statement" as used herein means a written statement made by said person and signed or otherwise adopted or approved by him, or a stenographic, mechanical, electrical, or other recording, or a transcript thereof, or which is a substantially verbatim recital of an oral statement made by said person to an officer or agent of the State and recorded contemporaneously with the making of such oral statement....”
Rule 3.220(a)(1)(ii) defining what constitutes a discoverable 'statement' including tape recordings
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Join FLexlaw to unlock all legal intelligencePrior to trial, Balboa's counsel invoked reciprocal discovery. The state refused to furnish tape-recorded statements of two witnesses, claiming the re…
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BASKIN, Judge.
Prior to trial, Balboa’s counsel invoked reciprocal discovery. The state failed to furnish tape-recorded statements of two witnesses on the ground that the recordings were work product and therefore not required to be furnished. The trial court agreed and denied defendant’s motion to impose sanctions without conducting a Richardson * hearing. The court relied upon representations by the prosecutor concerning the content of the tapes. We reverse.
There is no question that the recordings contained oral statements by the witnesses. Rule 3.220(a)(l)(ii), Florida Rules of Criminal Procedure, defines statements:
The term “statement” as used herein means a written statement made by said person and signed or otherwise adopted or approved by him, or a stenographic, mechanical, electrical, or other recording, or a transcript thereof, or which is a substantially verbatim recital of an oral statement made by said person to an officer or agent of the State and recorded contemporaneously with the making of such oral statement.... (emphasis added)
Rule 3.220(c)(1), Florida Rules of Criminal Procedure, provides a work product privilege:
Disclosure shall not be required of legal research or of records, correspondence, reports or memoranda, to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney, or members of his legal staff.
Thus, opinions, theories, or conclusions of attorneys are privileged, but statements of witnesses to attorneys are not. Had the court conducted a Richardson hearing, it could have determined whether prejudice resulted from the state’s failure to furnish the tapes. The court might also have decided whether to delete portions of the tapes prior to requiring the state to provide them to defense counsel. A “bare assumption of state compliance is insufficient.” Cooper v. State, 377 So. 2d 1153 (Fla.1979).
We reject as frivolous the state’s contention that the error in failing to conduct a Richardson hearing was harmless. Cooper; Wilcox v. State, 367 So. 2d 1020 (Fla.1979). Smith v. State, 372 So. 2d 86 (Fla.1979) mandates a new trial.
For these reasons, we reverse the conviction and sentence and remand the cause for a new trial.
*
Richardson v. State, 246 So. 2d 771 (Fla.1971).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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State v. Rabin, 495 So. 2d 257 (Fla. 3d DCA 1986)…d legal advice which might not have been made absent the privilege’’); § 90.502(l)(c)l, (2). . The state’s contention that Diaz’s statements are not work product is without merit. For this proposition, the state relies primarily on Balboa v. State, 446 So. 2d 1134 (Fla. 3d DCA 1984), in which this court held that tape-recorded statements of two state witnesses were not privileged from discovery. In Balboa, the court made the following statement: "Thus, opinions, theories, or conclusions of attorneys are privi…
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R.R. v. State, 476 So. 2d 218 (Fla. 3d DCA 1985)…Cooper v. State, 377 So. 2d 1153 (Fla.1979); Wilcox v. State, 367 So. 2d 1020 (Fla.1979); Zeigler v. State, 402 So. 2d 365 (Fla.1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982). As we have in the past, e.g., Balboa v. State, 446 So. 2d 1134 (Fla. 3d DCA 1984), we apply this rule and reverse the order of [*220] delinquency for a new adjudicatory hearing. Because we are most disquieted by the rule of automatic Richardson reversibility7 — which, for reasons which we frankly do not unders…
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Paulino Nunez v. City OF Hialeah & David Leahy, 477 So. 2d 655 (Fla. 3d DCA 1985)…d City of Hialeah charter amendment, see State ex rel. Landis v. Tedder, 106 Fla. 140, 143 So. 148 (1932); City of Miami Beach v. Herman, 346 So. 2d 122 (Fla. 3d DCA 1977), because, as in the identical and controlling case of City of Miami v. Rolle, 446 So. 2d 1134 (Fla. 3d DCA 1984), the city did not comply with the time frame required by § 5.03A of the Dade County Home Rule Charter. No motion for rehearing will be entertained and the mandate will issue forthwith.…
Previewing 3 of 7 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)
- Cooper v. State, 367 So. 2d 1020 (Fla. 1979)
- Wilcox v. State, 367 So. 2d 1020 (Fla. 1979)
- Cooper v. State, 377 So. 2d 1153 (Fla. 1979)