County Criminal Court:  CRIMINAL LAW – destruction or loss of evidence – trial court erred in dismissing charge based on destruction or loss of videotape depicting appellant’s participation in field sobriety test – trial judge did not find that the videotape was material and favorable to the accused or that law enforcement acted in bad faith – Order reversed and case remanded.  State v. Eno, No. 01-08085 (Fla. 6th Cir. App. Ct. April 28, 2003).








vs.                                                                               APPEAL NO:  CRC01-08085CFANO







Opinion filed April _____, 2003.


Appeal from a decision of the

County Court for Pinellas County;

William H. Overton, Judge.


Wendy L. Pepper, Esquire

Assistant State Attorney.


J. Kevin Hayslett, Esquire

Attorney for Appellee.



The State appeals from the trial court’s order granting Eno’s motion to dismiss, which was based on the destruction or loss of a videotape depicting Eno’s participation in a field sobriety test (i.e., Rhomberg Alphabet Test).   We have reviewed the trial judge’s written order dated April 26, 2001.  Based on that order, we reverse and remand.

The history of this case is as follows.  On April 7, 1999, the trial judge originally granted Eno’s motion to dismiss.  The State then appealed.  On April 25, 2000, this court, albeit a different appellate panel, reversed and remanded with directions for the trial judge to consider the bad faith requirement discussed in Arizona v. Youngblood, 109 S. Ct. 333 (1988).  On remand, the trial judge again granted Eno’s motion to dismiss.  This appeal follows.  In his written order dated April 26, 2001, the trial judge made the following findings:


This court finds that the destroyed videotape of the defendant performing the Field Sobriety Test, made by Deputy Haimes maybe [sic] beneficial to the defendant and therefore exculpatory in nature.  The defendant testified the tape would be beneficial because the videotape captured the defendant’s speech, balance, and ability to perform the Rhomberg alphabet test.  This was in conflict with Deputy Haimes [sic] testimony.  This court did not specifically reject Deputy Haimes’ testimony but found this one-against-one situation, bases [sic] upon Mitchell, was sufficient to meet the Youngblood standard and granted the Motion to Dismiss.  This court does not find any bad faith by Deputy Haimes. [1]



A distinction must be made concerning lost, destroyed, or suppressed evidence.  When potentially exculpatory evidence is destroyed by the State, there must be a finding of bad faith on the part of law enforcement before a defendant is deprived of due process.  Youngblood, 109 S. Ct. at 58.  Conversely, when the prosecution has suppressed evidence that is material and plainly favorable to the accused, the more stringent Brady standard applies, irrespective of the good faith or bad faith intent of the prosecution.  Brady v. Maryland, 83 S. Ct. 1194 (1963). 

As to potentially exculpatory evidence, the landmark case of Youngblood, and all cases since, requires a defendant to show bad faith on the part of the person destroying the evidence before any relief can be afforded.  In Youngblood, the United States Supreme Court held:


But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.... We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. (emphasis added).


Youngblood, 109 S. Ct. at 57-58 (1988).


            Here, the trial judge found that the videotape may be “beneficial to the defendant and therefore exculpatory in nature.”  The trial judge also found that law enforcement did not act in bad faith.  Without a showing that law enforcement destroyed the videotape in bad faith, or without a showing that the videotape was material and favorable to the accused, [2] the dismissal of charges was not warranted.  State v. Thomas, 826 So. 2d 1048 (Fla. 2d DCA 2002); State v. Larrinaga, 569 So. 2d 911 (Fla. 5th DCA 1990).

We vacate the trial judge’s order granting Eno’s motion to dismiss.  We reverse and remand with directions for the county court to reinstate the charges against Eno.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this _______ day of April, 2003.



                                                                                    JOHN A. SCHAEFER, Circuit Judge





                                                                                    W. DOUGLAS BAIRD, Circuit Judge





                                                                                     NANCY MOATE LEY, Circuit Judge


cc:        State Attorney’s Office

            J. Kevin Hayslett, Esquire







[1]   The case relied on by the trial judge in his written order, Mitchell v. State, 358 So. 2d 238 (Fla. 2d DCA 1978), was quashed by the Florida Supreme Court on the basis of its opinion in State v. Sobel, 363 So. 2d 324 (Fla. 1978).  See State v. Mitchell, 368 So. 2d 591 (Fla. 1979).

[2]   A mere assertion that the videotape would have been helpful is insufficient.  Thomas, 826 So. 2d at 1050.