KEVIN WALTER PENDER, AND CLARENCE PENDER, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Clarence and Kevin Pender were convicted of sexual battery on a child under twelve. The appellate court reversed due to a discovery violation—the state failed to produce a colposcopic photograph that the examining pediatrician had taken and discussed with the prosecutor, which constituted per se reversible error.
The failure to produce the colposcopic photograph constituted per se reversible error that is not subject to harmless error analysis. The trial court's refusal to grant a Richardson hearing on the discovery violation was error.
[1] A trial court commits per se reversible error by refusing to conduct a Richardson hearing when defense counsel claims a discovery violation based on the state's failure t…
[2] The failure to disclose a photograph relevant to the examination of a child victim constitutes a discovery violation.
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Establishes that the trial court's refusal to grant a Richardson hearing on the discovery violation was reversible error.
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Join FLexlaw to unlock all legal intelligenceDr. Tokarski, a pediatrician with the Child Protection Team, examined the victim on June 11, 1992. She found a vaginal discharge, scarring, and a cyst…
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PER CURIAM.
Clarence Pender and Kevin Walter Pender appeal their convictions for sexual battery on a child less than twelve years of age.1 Clarence Pender is the victim’s father, and Kevin Pender is the victim’s uncle.
Dr. Tokarski, an examining pediatrician with the Child Protection Team,2 testified at trial that she examined the victim on June 11, 1992. According to Dr. Tokarski, although the child’s hymen was intact, she had a discharge at the opening of the vagina, scarring and a cyst. Dr. Tokarski opined that these “abnormalities” had been caused by “blunt trauma” to [the child’s] “outer genitals,” but was unable to date the trauma beyond stating that it was more than five to seven days old. Dr. Tokarski also stated that she did a culture which showed that the child had chlamydia.
On cross-examination by the father’s counsel, Dr. Tokarski was asked whether she had examined the child with a colposeope, an instrument which has the ability to take a photograph. She acknowledged that she had taken a colposcopic photograph of the child, and had “discussed it” with the prosecutor, although she had not given the photograph to him. At this point, both defense counsel asked for a Richardson hearing, claiming a discovery violation based on the state’s failure to produce the photograph.3 See Fla.R.Crim.P. 3.220(b)(l)(J) (1993). The trial court refused. This was per se reversible error. James v. State, 639 So. 2d 688 (Fla. 2d DCA 1994); Smith v. State, 500 So. 2d 125 (Fla.1986); Richardson v. State, 246 So. 2d 771 (Fla.1971). It is not subject to a harmless error analysis. Schopp v. State, 641 So. 2d 141 (Fla. 4th DCA 1994), rev. granted, 649 So. 2d 235 (Fla.1994).
REVERSED and REMANDED.
PETERSON and GRIFFIN, JJ., concur. DIAMANTIS, J., concurs specially in result, with opinion, in which PETERSON, J., concurs.
. The defendants, who are brothers, were tried together below, and their cases have been consolidated for the purposes of appeal.
. A multidisciplinary team funded by state grants to investigate suspected abuse or neglect of children referred by HRS or a law enforcement agency.
.Defense counsel also informed the court that he had served a subpoena duces tecum on Dr. Tokarski specifically requesting any colposcopic photographs. No such subpoena is contained in the record on appeal and it is unclear when and where the photographs were to be produced.
DIAMANTIS, Judge,
concurring in result.-
I concur that the trial court committed reversible error in not conducting a Richardson 1 hearing regarding the state’s failure to disclose to the defense the existence of the colposcopic photograph taken by Dr. Tokar-ski, a member of the Child Protection Team. See Lee v. State, 538 So. 2d 63, 65 (Fla. 2d DCA 1989), and cases cited therein.
PETERSON, J., concurs.
. Richardson v. State, 246 So. 2d 771 (Fla.1971).
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Citator
Cited By
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Pender v. State, 700 So. 2d 664 (Fla. 1997)…refused to hold a Richardson hearing. The district court, relying on this Court’s decision in Smith v. State, 500 So. 2d 125 (Fla.1986), originally found the trial court’s failure to conduct a Richardson hearing per se reversible. Pender v. State, 647 So. 2d 957 (Fla. 5th DCA mi)(Pender I). This Court quashed the district court’s decision and remanded for reconsideration in [*666] light of State v. Schopp, 653 So. 2d 1016 (Fla.1995). State v. Pender, 661 So. 2d 304 (Fla.1995)(Pender II). In Schopp, we overr…
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State v. Pender, 661 So. 2d 304 (Fla. 1995)…PER CURIAM. We have for review Pender v. State, 647 So. 2d 957 (Fla. 5th DCA 1994), which expressly and directly conflicts with the opinion in State v. Schopp, 653 So. 2d 1016 (Fla.1995). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The decision below is quashed and this cause is remanded for reconsider…
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Pender v. State, 682 So. 2d 1161 (Fla. 5th DCA 1996)…pportunity, offered by the judge, to question Dr. Tokarski about the photograph further confirms the unimportance of what it depicted under the facts of this ease. AFFIRMED. PETERSON, C.J., and DAUKSCH and GRIFFIN, JJ., concur. . Pender v. State, 647 So. 2d 957 (Fla. 5th DCA 1994), review granted, 654 So. 2d 920 (Fla.1995). . State v. Pender, 661 So. 2d 304 (Fla.1995).…
Authorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Smith v. State, 500 So. 2d 125 (Fla. 1986)
- LEE v. State, 538 So. 2d 63 (Fla. 2d DCA 1989)
- Schopp v. State, 641 So. 2d 141 (Fla. 4th DCA 1994)
- James v. State, 639 So. 2d 688 (Fla. 2d DCA 1994)