LENROY PETER CELESTINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lenroy Peter Celestine was convicted of attempted second-degree murder, burglary, aggravated battery, shooting at a dwelling, and violating a domestic violence injunction. He appealed arguing that the trial court erred by not conducting a Richardson hearing based on an alleged discovery violation regarding a statement he made upon arrest, but the appellate court affirmed the conviction, finding the issue was not preserved for appeal and no discovery violation actually occurred.
The court affirmed the conviction, holding that no Richardson hearing was required because: (1) the discovery violation argument was raised for the first time on appeal and thus not preserved for review, and (2) no actual discovery violation occurred because the defense was aware of the statement through the officer's earlier deposition.
[1] An issue is not preserved for appellate review if it was not raised and ruled upon by the trial court.
[2] A discovery violation objection requires a Richardson hearing only when a discovery violation has occurred and an objection based on that violation has been made.
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Join FLexlaw to unlock all legal intelligence“A Richardson inquiry is necessary only when there has been a discovery violation and an objection based on the alleged violation.”
Establishes the legal standard for when a Richardson hearing is required—both a discovery violation and timely objection are prerequisites.
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Join FLexlaw to unlock all legal intelligenceCelestine was removed from a residence where an altercation occurred and placed in a police car. Upon being placed in the car, he stated 'I should hav…
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ORFINGER, M., Senior Judge.
Appellant was convicted of attempted second degree murder with a firearm, burglary of a dwelling while armed, aggravated battery while armed, shooting at or within a dwelling and violation of a domestic violence injunction. He contends on appeal that the trial court erred in not conducting a Richard son1 hearing based on an alleged discovery violation by the state. We disagree and affirm.
At trial, Corporal Ashley of the Ocala Police Department testified that he removed Celestine from the residence where the altercation occurred and placed him in a police car. During direct examination the following exchange occurred:
Q. Okay. Did you question him at all at that time?
A. No, sir. Q. Did he say anything to you when you got into your automobile?
MR. JOHNSON: (trial defense counsel): I’m going to object, Your Honor— hearsay.
MR. HODGES (assistant state attorney): Your Honor, the Defendant is saying it.
THE COURT: Overruled.
MR. JOHNSON: Also, Your Honor, the statement would violate the Defendant’s due process rights.
The trial court removed the jury and allowed the contested testimony to be proffered. The officer testified that as appellant was being placed in the police car he stated “I should have killed her.” During cross examination defense counsel questioned the officer concerning whether the statement had been noted in any written reports. The officer replied that it had not. Then the following took place:
Q. If there’s no notation of it other than the fact that you’re stating it here today and have said it in your deposition, there’s no record of it other than that.
A. Correct. Just the deposition and now. (emphasis added).
The trial court found that the statement had not been made as a result of interrogation, that it was made freely and voluntarily, and allowed the testimony to be heard by the jury.
The argument that there was a discovery violation is made for the first time on appeal. At no time did appellant complain to the trial court that there had been a discovery violation, nor was the court asked to conduct a Richardson hearing. Thus the state correctly contends that the issue was not preserved for appellate review. See § 924.051(1)(b), Fla. Stat. (Supp.1996), Martin v. State, 705 So. 2d 1337, 1345 (Fla.1997). Moreover, no discovery violation appears from the record. Although the statement did not appear in the written reports provided to the defense, it is clear that the defense was aware of the statement prior to trial, as evident from the testimony of Corporal Ashley that he had disclosed this information in his earlier deposition. A Richardson inquiry is necessary only when there has been a discovery violation and an objection based on the alleged violation. Bush v. State, 461 So. 2d 936, 938 (Fla.1984). See also, Mandracken v. State, 689 So. 2d 1219 (Fla. 5th DCA 1997).
AFFIRMED.
COBB and THOMPSON, JJ., concur. . Richardson v. State, 246 So. 2d 771 (Fla.1971).
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Taylor v. State, 62 So. 3d 1101 (Fla. 2011)…Where a defendant fails to timely object to a discovery violation or to request a Richardson hearing, the defendant does not preserve the point for appellate review.” Major v. State, 979 So. 2d 243, 244 (Fla. 3d DCA 2007) (citing Celestine v. State, 717 So. 2d 205, 206 (Fla. 5th DCA 1998)). The only cognizable claim here, therefore, is that trial counsel was ineffective for failing to request a Richardson hearing on the alleged discovery violation. As discussed in the previous section, this claim is also with…
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Thomas v. State, 63 So. 3d 55 (Fla. 4th DCA 2011)…Where a defendant fails to timely object to a discovery violation or to request a Richardson hearing, the defendant does not preserve the point for appellate review.” Major v. State, 979 So. 2d 243, 244 (Fla. 3d DCA 2007) (citing Celestine v. State, 717 So. 2d 205, 206 (Fla. 5th DCA 1998)). However, “[t]here are no exact ‘magic words’ or phrases which must be used by the defense in order to necessitate the [Richardson ] inquiry; only the fact that a discovery request has not been met.” Jones v. State, 32 So.…
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Stayeley v. State, 744 So. 2d 1051 (Fla. 5th DCA 1999)…take the deposition, the defendant cannot demonstrate prejudice. The defendant also contends that the trial court did not conduct a Richardson hearing. A Richardson hearing is not required unless there is a discovery violation. Celestine v. State, 717 So. 2d 205, 206 (Fla. 5th DCA 1998). Both sides furnished last minute witnesses. The defendant furnished witnesses on May 28, three days before trial. The court was disturbed by the attorneys’ late preparation, but did not find that either committed a discover…
Previewing 3 of 5 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)
- Bush v. State, 461 So. 2d 936 (Fla. 1984)
- Martin v. State, 705 So. 2d 1337 (Fla. 1997)
- Mandracken v. State, 689 So. 2d 1219 (Fla. 5th DCA 1997)