THOMAS GAETANO LIVIGNI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Gaetano Livigni was convicted of aggravated battery and obstructing an officer without violence. The appellate court reversed and remanded for a new trial because the trial court improperly excluded defense witness testimony without a showing of willful discovery violation.
The trial court erred in excluding the witness because there was no showing of a discovery violation, and even if one had been demonstrated, witness exclusion is a severe sanction that should be a last resort reserved for extreme or aggravated circumstances. The error was not harmless because the excluded witness would have impeached the victim's credibility in a case turning on credibility.
[1] A trial court must conduct an adequate inquiry into all circumstances surrounding a discovery violation, including whether the violation was inadvertent or willful, trivi…
[2] Late discovery or location of a witness does not constitute prejudice per se.
Previewing 2 of 6 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“When a disclosure obligation is violated, the trial court is required to make an adequate inquiry into all the circumstances, including whether the violation was inadvertent or wilful, trivial or substantial, and whether noncompliance with the rule has prejudiced the ability of the opposing party to properly prepare for trial.”
Establishes the standard trial courts must follow when addressing alleged discovery violations
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Join FLexlaw to unlock all legal intelligenceLivigni's defense listed Smith as a witness one week before trial but had not subpoenaed her. Smith appeared at court during trial, and the State argu…
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FULMER, Judge.
Thomas Gaetano Livigni appeals his convictions for aggravated battery and obstructing an officer without violence. Because we agree with Livigni’s contention that the trial court improperly excluded the testimony of a defense witness, we reverse and remand for a new trial.
The defense listed Smith as a witness a week prior to trial, but had not been able to subpoena her. When Smith showed up at the court during trial, the State argued a discovery violation and asked the court to strike the witness based on the fact that the defense had not served Smith. The court recessed to allow the State to depose Smith. When the court reconvened, the State argued it had been prejudiced and the court ruled that Smith would be excluded.
Under Florida Rule of Criminal Procedure 3.220(d)(1)(A) & (j), a defendant has a continuing .duty to furnish to the prosecutor the name and address of a witness whom the defendant expects to call at trial. When a disclosure obligation is violated, the trial court is required to make an adequate inquiry into all the circumstances, including whether the violation was inadvertent or wilful, trivial or substantial, and whether noncompliance with the rule has prejudiced the ability of the opposing party to properly prepare for trial. See Richardson v. State, 246 So. 2d 771, 775 (Fla.1971). Late discovery or location of a witness does not constitute prejudice per se. See Weiand v. State, 701 So. 2d 562, 564 (Fla. 2d DCA 1997), review granted, No. 91,925, — So. 2d — (Fla. Mar. 24, 1998). “[Ojften a very brief recess, during which the parties work cooperatively to address the situation, provides sufficient preparation” for the newly discovered evidence. Id. However, where there is no wilful discovery violation, the court should not consider sanctions.
Here, the trial court erred by imposing the sanction of exclusion because there was no showing of a discovery violation. This error was not harmless because the aggravated battery charge turned on a credibility contest between the defendant and the victim, and the excluded witness would have impeached the victim’s credibility. See Dukes v. State, 442 So. 2d 316, 317 (Fla. 2d DCA 1983) (error not harmless where trial court excluded defense witness whose testimony would have supported the defendant’s credibility). Furthermore, even if a discovery violation had been demonstrated, the severe sanction of witness exclusion should be a last resort reserved for extreme or aggravated circumstances. See State v. Schwartz, 605 So. 2d 1000 (Fla. 2d DCA 1992).
Accordingly, we reverse the judgment and sentence and remand for a new trial.
BLUE, A.C.J., and CASANUEVA, J., concur.
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McDUFFIE v. State, 970 So. 2d 312 (Fla. 2007)…te, 864 So. 2d 525, 530 (Fla. 5th DCA 2004) (stating that exclusion of a defense witness because of a defense disclosure violation is a severe sanction that should be a last resort reserved for extreme or aggravated circumstances); Livigni v. State, 725 So. 2d 1150, 1151 (Fla. 2d DCA 1998) (stating that the severe sanction of defense witness exclusion for witness list violation should be a last resort reserved for extreme or aggravated circumstances). When, as in this case, the discovery violation is committe…
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Rodriguez v. State, 919 So. 2d 1252 (Fla. 2005)…“Excluding a defense witness because the defense failed to disclose the witness, or to timely disclose the witness, is a ‘severe sanction’ that ‘should be a last resort reserved for extreme or aggravated circumstances.’ ”) (quoting Livigni v. State, 725 So. 2d 1150, 1151 (Fla. 2d DCA 1998)). Counsel did subpoena Montalvo and attempted to procure his testimony for trial. Montalvo left town before being called to testify and could not be located despite counsel’s efforts to do so. Finally, even if counsel’s perf…
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Tomengo v. State, 864 So. 2d 525 (Fla. 5th DCA 2004)…disclosures. Excluding a defense witness because the defense failed to disclose the witness, or to timely disclose the witness, is a “severe sanction” that “should be a last resort reserved for extreme or aggravated circumstances.” Livigni v. State, 725 So. 2d 1150, 1151 (Fla. 2d DCA 1998). The decision of the trial court to exclude a defense witness because of a discovery violation should balance “the propositions that the reciprocal rules of discovery should be followed so long as the defendant is not denied…
Previewing 3 of 10 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)
- State v. Schwartz, 605 So. 2d 1000 (Fla. 2d DCA 1992)
- Dukes v. State, 442 So. 2d 316 (Fla. 2d DCA 1983)
- Webb v. State, 701 So. 2d 562 (Fla. 1st DCA 1997)
- Weiand v. State, 701 So. 2d 562 (Fla. 2d DCA 1997)