County Criminal Court: CRIMINAL PROCEDURE Discovery violation/dismissal trial court excluded two of the state's witnesses due to a discovery violation- the transcript on the hearing on the Motion for Sanctions is not part of the record, notwithstanding the opportunity afforded the state to supply the transcript- appellant has failed to demonstrate a basis for reversal in this record- Judgment affirmed State v. Tucker, No. 03-05424CFAES(Fla. 6th App. Ct. February 15, 2005).

 

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

 

 

STATE OF FLORIDA,

Appellant,

 

vs. Appeal No: 03-05424CFAES

 

CHRISTINE M. TUCKER ,

Appellee.

____________________________/

 

 

Appeal from an order in Pasco County Court

 

County Judge Debra Roberts

 

Office of the State Attorney

 

Kerry O'Connor, Esq.

 

 

 

ORDER AND OPINION

 

THIS MATTER is before the Court on the State of Florida's appeal of the trial court's granting of appellant's motion to dismiss. After reviewing the briefs and record, this Court finds that the ruling of the trial court must be affirmed.

Defendant was charged with leaving the scene of an accident with property damage. On August 18, 2003, counsel for defendant filed a Demand for Discovery with a due date of September 2, 2003. On September 17, 2003, counsel for defendant filed a Motion to Compel Discovery. On September 29, 2003, the state filed an Answer to Demand for Discovery listing only Trooper Hellstrom (the arresting officer) as a witness. The non jury trial and Motion to Compel Discovery were set for October 8, 2003. On October 8, 2003, the state requested a continuance to obtain additional discovery. The trial court granted the state's request for a continuance and ordered the state to provide any existing discovery documents to defendant by October 14, 2003. The non jury trial was reset for November 3, 2003. On October 17, 2003, counsel for defense filed a Motion for Sanctions seeking to 'prohibit any and all additional witnesses for the state from testifying in this trial and prohibit the introduction of any additional tangible evidence not proved to the defendant by October 14, 2003. On October 24, 2003, the state sent defense counsel an Additional Witness List and Acknowledgement of Additional Tangible Evidence that contained a copy of the Florida Highway Patrol Accident Report and the names of two additional state witnesses contained in the report. The hearing on defendant's Motion for Sanctions was set for the same date as the non jury trial (November 3). The trial court heard and granted the defendant's Motion for Sanctions on November 3, the second non jury trial date. Thus, the state was precluded from admission of the Accident Report as well as the two additional witnesses . The hearing on the motion is not contained in the record.[1] Subsequently, on that same date, after the court granted defendant's Motion for Sanctions, the state asked for another continuance "to allow [them] to consider an appeal of the decision that was made." Counsel for defense had no objection as long as the trial took place before speedy had trial had run (November 11, 2003). This hearing was made a part of the record. The trial was reset for November 5, 2003. On November 5, 2003, the state announced that it was not ready to proceed and asked if a written order had been entered suppressing the accident report and the witnesses. The court replied that a written order had been entered. Defense moved for a dismissal stating 'as a result of several continuances, I would at this point move to dismiss this case based on your ruling on Monday. There is no accident report nor are there witnesses other than the trooper." The trial court granted the motion to dismiss for lack of prosecution. This hearing was also made a part of the record.

Appellant appeals the trial court's ruling that excluded the two witnesses due to a discovery violation. However, the transcript on the hearing on the Motion for Sanctions is not part of the record, notwithstanding the opportunity afforded the state to supply the transcript. Based on the record submitted, this Court can find no reversible error. Thus, under the circumstances, we are governed by the principle of law which imparts a presumption of correctness to the trial court's judgment. Anderson v. State  442 So.2d 397, 398 (Fla. 5th DCA 1983)(failure to supply an adequate record leaves the appellate court with no alternative but to affirm the order); See also, Suiero v. State, 248 So.2d 219, 220-221 (Fla. 4th DCA 1971); McCarthy v. State,  417 So.2d 1153, 1154 (Fla. 4th DCA 1982). Accordingly, because this Court was not furnished with a transcript of the hearing which generated the order being challenged in this appeal, appellant has failed to demonstrate a basis for reversal in this record, and we must therefore affirm.

 

IT IS THEREFORE ORDERED that the ruling of the trial court is AFFIRMED.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __

day of January, 2005. .

_________________________

W. Lowell Bray, Circuit Judge

Primary Appellate Judge

 

__________________

Daniel D. Diskey

Circuit Judge

 

______________________

Stanley R. Mills

Circuit Judge

Copies to:

Office of the State Attorney

 

Office of the Public Defender

 

 

 



[1] On December 27, 2004, pursuant to Florida Rule of Appellate Procedure 9.200(f)(2), this Court entered an Order to Supplement the Record, directing appellant to supplement the record with ". . . the hearing on the Motion for Sanctions, in which the trial court excluded the accident report and two additional witnesses that the State sought to introduce, . . . " On January 14, 2005, the state filed the same transcript titled Motion for Sanctions, that was already contained in the file. Thus, this Court has no knowledge of what took place at the first hearing.