IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
v. Appeal No. CRC 05-11 APANO
Opinion filed _______________.
Appeal from a decision of
County Judge Thomas Freeman
C. Marie King, Esq.
Assistant State Attorney
Rob Roy, Esq.
Attorney for appellee
(No answer brief filed)
ORDER AND OPINION
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 (
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.”
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
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 (
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 (
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
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.
AND ORDERED in Chambers at
David A. Demers
Robert J. Morris, Jr.
Irene S. Sullivan
cc: State Attorney
Rob Roy, Esq.