PAUL E. GANT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1985-10-08
No. 84-822
Before BARKDULL, HUBBART and NESBITT, JJ.
477 So. 2d 17 Florida District Court of Appeal, Third District (1985) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the trial court's failure to conduct a Richardson hearing after a discovery violation regarding a crucial tape recording constituted reversible error.


Headnotes

[1] A prosecutor's failure to disclose the existence of an intelligible tape recording of a drug transaction, even if unintentional, constitutes a discovery violation when th…

[2] Upon discovery of a discovery violation, a trial court must conduct a Richardson hearing to determine if the violation prejudiced the defendant's ability to prepare for t…

Previewing 2 of 4 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

Facts & Procedural History

The state failed to properly disclose an intelligible tape recording of a drug transaction, initially believing it to be unintelligible. The tape was …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
NESBITT, Judge.

NESBITT, Judge.

Gant appeals his convictions and sentences on charges of trafficking in cocaine and possession of cocaine. We reverse.

A confidential informant arranged a drug purchase at Mr. Gant’s home. The informant arrived at Gant’s home accompanied by an undercover police officer who was equipped with a sound transmitter. Gant and three other men were at the house when the transaction took place. All four were arrested after one of the other men retrieved a kilo of cocaine from a vehicle parked outside.

In response to Gant’s discovery demand, the state indicated the existence of a tape recording of the transaction. A codefend-ant’s counsel went to the state attorney’s office to hear the tape and make a copy. When the prosecutor and defense attorney attempted to play the tape, it was unintelligible. Both agreed that the tape could not be used at trial.

As it turned out, the tape had been played at the wrong speed and was, in fact, intelligible. The prosecutor did not make this discovery until right before opening arguments were to begin. He then informed the court and defense counsel that he intended to use the tape. A codefend-ant’s attorney objected and requested a Richardson hearing,1 which was denied. Gant’s counsel unsuccessfully made the same objection and request when the tape was later admitted into evidence.

We agree with Gant’s contention that the failure to conduct a Richardson hearing was reversible error.

Under Florida Rule of Criminal Procedure 3.220(a)(1), the prosecutor was obligated to disclose the existence of the tape recording at issue and make it available to the defendant upon request. The prosecutor attempted to comply with that request, but, by inadvertently playing the tape at the wrong speed, failed to do so, and, based upon the mistaken conclusion that the tape was unintelligible, agreed that it would not be used at trial.

We reject the state’s contention that no violation occurred. The state, by agreeing that the tape was unintelligible and unusable, created a situation which was the practical equivalent of having never disclosed the existence of the tape.

Consequently, the last-minute revelation that the tape was intelligible and usable was as surprising and potentially prejudicial as if it were the first disclosure of the tape’s existence. When it was discovered on the day of trial that the statement did exist (was intelligible), it is clear that a discovery violation, though unintentional, had occurred. Cf. Kilpatrick v. State, 376 So. 2d 386 (Fla.1979) (failure to conduct Richardson inquiry reversible error where state disclosed intent to use co-defendant as witness on rebuttal after failing to list him as a witness and advising defense counsel that he would not be called).

Upon discovery of the violation, it was the trial court’s duty to conduct an inquiry to determine whether the violation prejudiced the defendant. Richardson v. State, 246 So. 2d 771 (Fla.1971).

The state argues in the alternative that the inquiry conducted by the trial judge was sufficient to satisfy Richardson.

We disagree. In Richardson, the supreme court held that trial courts should inquire at least into whether the violation: (a) was inadvertent or willful; (b) was trivial or substantial; and (c) prejudiced the defendant in his ability to prepare for trial. In this case, the only thing established before the Richardson request was denied was the inadvertent nature of the violation. Without further inquiry, it was impossible for the trial court to ferret out the procedural prejudice which a Richardson hearing is meant to discover2 and fashion an appropriate sanction or remedy. See Wilcox v. State, 367 So. 2d 1020 (Fla.1979); Alfaro v. State, 471 So. 2d 1345 (Fla. 4th DCA 1985).3 Consequently, we are compelled to reverse for a new trial.

Reversed and remanded.

. Richardson v. State, 246 So. 2d 771 (Fla.1971).

. Gant defended on the theory that he was an innocent bystander not involved in the drug transaction. Since the tape recorded his voice making statements which arguably contradicted such a theory, its late disclosure clearly prejudiced the preparation of his case.

. It is the lack of inquiry which distinguishes this case from cases like Floyd v. State, 361 So. 2d 802 (Fla. 3d DCA 1978) and King v. State, 355 So. 2d 831 (Fla. 3d DCA), cert. denied, 364 So. 2d 887 (Fla.1978), in which an inquiry was made and a reasonable remedy provided.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • State v. Hall, 509 So. 2d 1093 (Fla. 1987)
    …ability to prepare for trial. Cumbie v. State, 345 So. 2d 1061, 1062 (Fla.1977); Richardson, 246 So. 2d at 775; Raffone v. State, 483 So. 2d 761, 763 (Fla. 4th DCA), dismissed, 491 So. 2d 281 (Fla.1986); Whitfield, 479 So. 2d at 215; Gant v. State, 477 So. 2d 17,19 (Fla. 3d DCA 1985); Donahue v. State, 464 So. 2d 609, 611 (Fla. 4th DCA 1985). Based on Richardson, a trial court’s failure to hold such an inquiry has been treated as per se reversible error. E.g., Smith, at 125-126; Zeigler v. State, 402 So. 2d…
  • Brown v. State, 515 So. 2d 211 (Fla. 1987)
    …for trial. Cumbie v. State, 345 So. 2d 1061, 1062 (Fla.1977); Richardson, 246 So. 2d at 775; Raffone v. State, 483 So. 2d 761, 763 (Fla. 4th DCA), dismissed, 491 So. 2d 281 (Fla. 1986); Whitfield \v. State ], 479 So. 2d at [208] 215; Gant v. State, 477 So. 2d 17, 19 (Fla. 3d DCA 1985); Donahue v. State, 464 So. 2d 609, 611 (Fla. 4th DCA 1985). State v. Hall, 509 So. 2d 1093, 1096 (Fla. 1987). It is clear that the court did not comply with Richardson. We have repeatedly held that a trial court’s failure to…
  • Williams v. State, 513 So. 2d 684 (Fla. 3d DCA 1987)
    …the defendant to properly prepare for trial.” Richardson v. State, 246 So. 2d 771, 775 (Fla.1971) (quoting Ramirez v. State, 241 So. 2d 744, 747 (Fla. 4th DCA 1970)); McDonnough v. State, 402 So. 2d 1233 (Fla. 5th DCA 1981); see also Gant v. State, 477 So. 2d 17 (Fla. 3d DCA 1985). Although the trial judge noted that this was one of the most flagrant Brady violations he had ever seen, the trial judge refused to grant the defendant’s motion for dismissal and failed to conduct a proper Richardson hearing. Whi…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw