County Criminal Court: CRIMINAL LAW – Discovery Violation/Dismissal. Although State failed to comply with a discovery request, suppression of critical evidence was error where the trial court failed to consider the proper factors and failed to consider less drastic sanctions. Order suppressing evidence reversed. State v. Guitierrez, No. CRC 05-11 APANO, (Fla. 6th Cir.App.Ct. Feb. 8, 2006).










v.                                                                                                                                                                   Appeal No. CRC 05-11 APANO









Opinion filed _______________.


Appeal from a decision of

the Pinellas County Court

County Judge Thomas Freeman


C. Marie King, Esq.

Assistant State Attorney


Rob Roy, Esq.

Attorney for appellee

(No answer brief filed)




            (J. Morris)


            THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court granting the defendant’s motion for sanctions. After reviewing the briefs and record, this Court reverses the decision of the trial court.

            The defendant was charged with possession of two undersized Spanish Mackerel fish --- a misdemeanor. He made a demand for discovery on October 28, 2004. The State filed its answer to the demand for discovery on November 29, 2004. The answer included the statement that all tangible objects could be inspected at the Pinellas County Sheriff’s Office. On December 2, 2004 the defendant filed a supplemental demand for discovery, seeking color copies of the photographs of the fish in question. On January 6, 2005 a pretrial hearing was held. During that hearing the issue of the photographs was addressed. The State told the court and defense counsel that: “Your Honor, we’re going to order the photographs today, and as soon as we get them, we’re going to send them to the defense.” R. 22. The trial court ordered the State to “have them for (the defense) by 5:00 Friday, January 14.” R. 22. Contrary to the trial court’s order, however, the State failed to send them to the defense.

 The defendant was forced to file a motion for sanctions, and did so on February 9, 2005. At the hearing on the motion the next day, the State denied knowing about the trial court’s previous order. (It must be noted that the particular assistant state attorney was not the same one who was at the previous hearing). The State informed the trial court that the defendant could go and get the photos at the sheriff’s office. The trial court found that the State’s failure to obtain the photos and comply with the court’s specific order was willful. The trial court granted the defendant’s motion for sanctions and excluded the photos from evidence. The State is now appealing that decision, claiming that the trial erred in excluding the evidence.



             This Court sympathizes with the trial court’s frustration with the State. Despite being told to comply with the discovery request and having the State represent that it would comply, the State never did what was required. Nevertheless, this is a discovery violation issue.  No more, no less. The State failed to provide discovery (the photos) as ordered to do so by the trial court, thereby subjecting it to sanctions.

 The sanction imposed, however, must be considered in light of existing case law governing discovery violations. In State v. Eaton, 868 So.2d 650 (Fla. 2d DCA 2004), the court laid out what is required. First, “when the court learns of a possible discovery violation, it must conduct a hearing pursuant to Richardson v. State, 246 So.2d 771, 774 (Fla. 1971).” Id. at 652. The purpose of the Richardson hearing is to determine: (1) if the violation was willful or inadvertent; (2) if it was substantial or trivial; and (3) if it had a prejudicial effect on the defendant’s trial preparation. State v. Evans, 770 So.2d 1174 (Fla. 2000). Only after considering these factors can the court then consider appropriate sanctions.

            In Eaton, the trial judge excluded blood test results from evidence because it found the State willfully failed to provide the defendant with the results in discovery. Interestingly, the State argued that the hospital records were there for inspection, but the trial judge said: “He doesn’t have to go on a wild goose chase to figure out whose [sic] got what. There is [sic] a few simple things that you do in discovery.” Id.  The trial court then suppressed the test results.

The appellate court noted in Eaton, that the extreme sanction of excluding evidence should only be used as a last resort. It held that evidence should not be excluded unless no other remedy suffices, and that it is “incumbent upon the trial court to conduct an adequate inquiry to determine whether other reasonable alternatives can be employed to overcome or mitigate any possible prejudice.” Id. The appellate court ultimately concluded that although the trial court properly considered the Richardson criteria, it failed to find that the defendant was prejudiced, and departed from the essential requirements of law when it suppressed the evidence without considering less drastic sanctions such as ordering the State to provide the test results and continuing the trial.

In the case at bar, the record shows that the trial court failed to consider --- let alone make findings on ---  the Richardson criteria, and failed to consider less drastic sanctions; it simply suppressed the evidence when it found that the State had failed to timely provide discovery. This was error. “Although a trial court may have the discretion to exclude the testimony of a witness as a sanction for violating Florida Rule of Criminal Procedure 3.220, such discretion cannot be properly exercised without a court inquiry into the circumstances surrounding the discovery violation.” Tomengo v. State, 864 So.2d 525, 527 (Fla. 5th DCA 2004).

 There was insufficient prejudice to the defendant and there were less drastic remedies available. “Prejudice means something which affects the ability of the defendant to properly prepare for trial.” State v. Thomas, 622 So.2d 174, 175 (Fla. 5th DCA 1993). See also Thompson v. State, 565 So.2d 1311 (Fla. 1990)(courts must determine if the discovery violation impaired the defendant’s ability to prepare for trial). As previously noted, the trial court made no finding of prejudice to the defendant, and this Court’s review of the record does not support such a finding.

There were also less drastic remedies available. The trial court could have sanctioned counsel. See Tomengo at 527. The behavior may have risen to indirect criminal contempt, but the people of the State of Florida should not pay the penalty. As noted in State v. Carpenter, 899 So.2d 1176 (Fla. 3d DCA 2005), the trial court’s action in effect, “punishes the public, not the prosecutor, and results in a windfall to the defendant.” Id. at 1182.

Moreover, unlike in Eaton, the unmet discovery request was still pretrial. Certainly if it is improper for the trial court in Eaton during a trial to suppress evidence instead of granting a continuance and ordering the State to turn over the evidence, it is improper for the trial court here to suppress evidence instead of getting the State to turn over the evidence to the defendant.

 IT IS THEREFORE ORDERED that the Order granting the defendant’s motion for sanctions is reversed, and this matter is remanded to the trial court for action consistent with this Opinion.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this ____ day of January, 2006.


                                                                                                David A. Demers

                                                                                                Circuit Judge





                                                                                                Robert J. Morris, Jr.

                                                                                                Circuit Judge





                                                                                                Irene S. Sullivan

                                                                                                Circuit Judge

cc:        State Attorney

            Rob Roy, Esq.

            Judge Freeman