SHELLIE WILSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Shellie Wilson was convicted of assault with intent to commit robbery and assault with intent to commit murder in the second degree in a bench trial. The appellate court reversed the murder conviction and remanded for a new trial because the trial judge abused his discretion in excluding testimony from a material witness whom defense counsel had failed to list in discovery, holding that a defendant should not suffer the consequences of counsel's dereliction of responsibility.
The trial judge abused the discretion afforded him under Rule 1.220(g) in not allowing the witness to testify. A defendant charged with a serious crime should be able to produce evidence material to his case, and when state-furnished defense counsel's dereliction of responsibility prevented the defendant from calling a material witness, the defendant should not suffer the consequences.
“A defendant charged with a serious crime should be able to produce evidence material to his case.”
Establishes the fundamental principle that defendants have a right to present material evidence to their defense.
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Join FLexlaw to unlock all legal intelligenceWilson was tried by the court without a jury after waiving jury trial. The trial court granted defendant's motion for reciprocal discovery under Rule …
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The appellant, Shellie Wilson, was convicted and adjudicated guilty by the trial court of the crimes of assault with intent to commit robbery (Count I), and assault with intent to commit murder in the second degree (Count II). The trial was by the court without a jury, the defendant having waived same.
The defendant was represented by the public defender. Prior to trial, his counsel presented a motion for reciprocal discovery and offer to exchange witness lists, which was filed in accordance with Rule 1.220(e) *427Cr.PR., 33 F.S.A. The court granted this motion. The motion was never withdrawn, but in fact counsel for the defendant never furnished a list.
After the state rested, the defendant sought to call on Edith Bailey (Johnson). Her name had not been furnished as a potential witness and on that basis the state objected to her being called. Defense counsel represented to the court that the witness had just come to his attention. Counsel further represented to the court that the testimony was material and recited the gist of it to the court which indicated that this witness’ testimony was contradictory to the testimony of the chief witness for the state as it related to charges contained in Count II of the information. Her testimony had no bearing or effect upon the evidence presented on Count I. The trial judge did not allow this witness to testify.
A defendant charged with a serious crime should be able to produce evidence material to his case. Fine v. State, 70 Fla. 412, 70 So. 379; Norman v. State, Fla.App.1963, 156 So.2d 186.
If there has been a dereliction of responsibility by state furnished defense counsel which prevented the defendant from calling a material witness (as opposed to the exercise of personal judgment by defense counsel) and this fact prejudiced the defendant’s case, the defendant should not be the one to suffer the consequences. Stratos v. State, Fla.App.1964, 167 So.2d 771; Byers v. State, Fla.App.1964, 163 So. 2d 57; 24 C.J.S., Criminal Law, § 1443.
Under the circumstances of this case, we feel that the trial judge abused the discretion afforded him under Rule 1.220(g) in not allowing the witness to testify.
It is, therefore, held that the conviction on the charge of assault with intent to commit murder in the second degree is reversed, and the cause is remanded for a new trial on that count.
The conviction under Count I of the crime of assault with intent to commit robbery is affirmed.
Affirmed in part and reversed in part.
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Richardson v. State, 246 So. 2d 771 (Fla. 1971)…the rule resulted in prejudice or harm to the defendant. All of the four District Courts of Appeal have now so held and we now place our stamp of approval upon this principle. See Howard v. State, Fla.App., 239 So. 2d 83; Wilson v. State, Fla.App., 220 So. 2d 426, 427; Buttler v. State, Fla., 238 So. 2d 313; Rhome v. State, Fla., 222 So. 2d 431; Ramirez v. State, Fourth District, Fla., 241 So. 2d 744, Opinion filed October 14, 1970. This is particularly true in view of the purpose of the Florida Rules of Cri…
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Bradford v. State, 278 So. 2d 624 (Fla. 1973)…he circumstances surrounding this late disclosure prior to his ruling which excluded these witnesses and that his failure to do so was contrary to Richardson v. State, supra; Ramirez v. State, 241 So. 2d 744 (Fla.App. 4th 1970), and Wilson v. State, 220 So. 2d 426 (Fla.App.3d 1969). In response, the State contends that the trial court’s ruling was in compliance with Richardson, supra, and Cacciatore v. State, 226 So. 2d 137 (Fla.App.3d 1969). We must agree with defendant’s position. In Cacciatore, the Third…
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Williams v. State, 264 So. 2d 106 (Fla. 4th DCA 1972)…ate, Fla.App.1970, 241 So. 2d 744; Richardson v. State, Fla.App.1970, 233 So. 2d 868, and Richardson v. State, Fla.1971, 246 So. 2d 771. We are of the opinion, in line with the comments here made and the provisions of Wilson v. State, Fla.App.1969, 220 So. 2d 426, that the judgment must be reversed and the case remanded for a new trial based upon an abuse of discretion. Finally, we acknowledge that there was eye-witness identification of the defendant as being the perpetrator of the crime. However, defendan…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fine v. State, 70 Fla. 412 (Fla. 1915)
- Byers v. State, 163 So. 2d 57 (Fla. 3d DCA 1964)
- Norman v. State, 156 So. 2d 186 (Fla. 3d DCA 1963)
- Stratos v. State, 167 So. 2d 771 (Fla. 3d DCA 1964)