Court: CRIMINAL PROCEDURE --- Discovery --- Alleged discovery errors were properly
resolved by trial court. Judgment and sentence affirmed. Curtis v. State,
No. CRC 06-62 APANO, (
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
JANICE SHARON CURTIS
v. Appeal No. CRC 06-00062 APANO
Opinion filed _____________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge Patrick K. Caddell
Senior Circuit Court Judge Frank N. Kaney
Joseph T. Hobson, Esquire
Attorney for Appellant
Theodora Christopher, Esquire
Attorney for Appellee
ORDER AND OPINION
THIS MATTER is before the Court on Appellant, Janice Sharon Curtis’, appeal from a conviction, after a jury trial, of Violation of Pretrial Release, a first degree misdemeanor, in violation of § 741.29(6) Fla. Stat. (2006). After review of the record and the briefs, this Court affirms the judgment and sentence.
Factual Background and Trial Court Proceedings
On May 20, 2006, the Appellant, Janice Sharon Curtis, was arrested for a domestic battery. The Appellant proceeded to an advisory or first appearance hearing on May 21, 2006 at which the court set bond at $5,000 and ordered, as a condition of release, the Appellant to have no contact with the alleged victim. The Appellant posted bond and was released from jail. Upon release the Appellant returned to the residence she shared with the alleged victim, while the victim was present, and thereby had contact with him. A few days later, the Appellant was again incarcerated in the Pinellas County Jail and made numerous telephone calls to the alleged victim.
On June 1, 2006, a two-count Misdemeanor Information was filed charging the Appellant with Battery and Violation of Pretrial Release pursuant to § 784.03 Fla. Stat. (2006) and § 741.29(6) Fla. Stat. (2006), respectively, both first degree misdemeanors. The initial Information listed the dates of offense as the battery case arising out of the incident occurring on May 20, 2006 and the violation of pretrial release arising between May 23 and May 25, 2006.
On June 8, 2006, a Demand for Speedy
Trial was filed by defense counsel, Donald P. Simon. On July 17, 2006, the Appellant filed a Pro
Se Motion for Faretta Hearing. On July
21, 2006, Appellant withdrew her Pro Se Motion for Faretta Hearing. On July 31, 2006, a Notice of Expiration of
Speedy Trial Period was filed by defense counsel Donald P. Simon. A jury trial was scheduled for August 8, 2006
before the Honorable Patrick K. Caddell.
On August 7, 2006, the State Attorney’s office contacted defense counsel
and informed him that the State Attorney’s office had additional tangible
evidence it intended to use at trial.
These items included an audio recording of the advisory hearing and
audio recordings or records of numerous telephone calls allegedly made by the
Appellant to the alleged victim from the Pinellas County Jail. On August 8, 2006, Appellant did not announce
ready for trial and moved the court to exclude the additional tangible
evidence. After argument the court found
“no particular discovery violation given the circumstances of this case. Certainly that there wouldn’t be a willful
one.” The State moved for a continuance
which was granted. In the course of
arguing these matters the State expressed its intention to amend the
Misdemeanor Information. A copy of the
Amended Misdemeanor Information was provided to Appellant’s trial counsel that morning,
August 8, 2006. The trial was continued
to August 10, 2006. On August 9, 2006,
the State filed its Amended Misdemeanor Information again, charging the
Appellant with the
Issues and Analysis
Appellant argues the trial court erred by failing to conduct a Faretta hearing. On July 17, 2006 the Appellant filed a Pro Se
Request for Faretta Hearing. The Pro Se
Request was expressly directed to the Circuit Court Judge McGrady and felony
criminal Division “C” and the Appellant’s then pending felony cases. The request was for a hearing in those felony
cases, not the present county court case.
The only mention of the present county court case was “if possible to
roll into Div. C”. There is nothing in
the record that reflects the request was ever brought to the attention of the
county court judge assigned to the present case or that any such request was
ever made to the county court judge in the present case. Further court records reflect that on July
21, 2006 Appellant withdrew her pro se motion. (Appellee’s Answer Brief,
Appendix B). Appellant thereafter
proceeded to jury trial with her privately retained trial counsel and never made
or renewed any request to represent herself.
Appellant made no request and certainly made
no unequivocal request for self-representation to the county court in the
present case. Appellant was not entitled to an inquiry on the subject of
self-representation under Faretta. Hardwick
v. State, 521 So.2d 1071, 1073 (Fla.1988), cert. denied, 488 U.S.
871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988); Watts v. State, 593 So.2d
2. Testimony of Witness David Lowman
Appellant argues “in the course of presenting its case-in-chief, the state
called a witness whom, it failed to list, whose disclosure came as a complete
surprise and whose effect was extremely prejudicial to the defense”. Appellant argues the trial court was required
to conduct a
In considering this argument, it is necessary to clarify certain factual matters. The State filed an additional witness list on August 8, 2006 which listed David Lowman and two other additional witnesses. The trial was on August 10, 2008. The testimony of David Lowman, the bail bondsman who bonded Appellant out of custody, was basically that he had instructed the Appellant to have no contact with the victim based on what the advisory judge had ordered. This testimony was cumulative to other trial evidence, specifically the clerk’s minutes and an audio recording of the Appellant’s advisory hearing, that the advisory judge had ordered Appellant to have no such contact. Of course Appellant had independent knowledge of the existence of the witness, her own bail bondsman. In argument to the trial court, Appellant’s trial counsel acknowledged that he did speak with Mr. Lowman prior to his trial testimony. Appellant’s trial counsel did vigorously cross-examine Mr. Lowman.
In addressing the legal issues raised in this argument, it
is first necessary to understand that the submission of an additional witness
list is not necessarily a discovery violation.
v. State, 515 So.2d
present case, Mr. Lowman’s testimony was relevant only to the charge of
violation of pretrial release. The
testimony was cumulative, added nothing new and did not change the nature of the
defense to the charge. Mr. Lowman and
the substance of his potential testimony was known to the Appellant. That testimony did not impair the Appellant's
ability to prepare for trial. Appellant was
not procedurally prejudiced by the State’s filing of an additional
witness list on August 8, 2006 and calling of David Lowman as a witness at
trial. Regardless, under the
circumstances of the present case the State’s filing of an additional witness
list on August 8, 2006 was not a discovery violation
and the trial court was not required to conduct a
3. Use of “Last-Minute Evidence”
The Appellant argues that the trial court erred in allowing “last minute” introduction of phone records and charts documenting telephonic communication and further erred in allowing an amendment to Count Two of the Information.
In considering this argument, it is also necessary to clarify certain factual matters. In the present case the trial was originally scheduled for August 8, 2006. On August 7, 2006, the Assistant State Attorney contacted Appellant’s trial counsel and notified him that additional discovery would be provided. On August 8, 2006 Appellant moved the court to exclude this additional evidence from the trial. That motion was fully argued before the court. The court stated in response and conclusion:
So I can’t, in good faith, legally exclude this evidence. I can’t find that there’s any particular discovery violation given the circumstances of this case. Certainly, that there wouldn’t be a willful one. And on top of that, even if there were, that there’s certainly a multitude of avenues to address it shy of excluding relevant evidence.
The trial court refused to exclude the
evidence but did continue the trial until August 10, 2006. In the course of arguing these matters the
State expressed its intention to amend the Misdemeanor Information. A copy of the Amended Misdemeanor Information
was provided to Appellant’s trial counsel that morning, August 8, 2006. On August 9, 2006, the State filed its
Amended Misdemeanor Information again charging the Appellant with the
present case, the hearing conducted by the trial court on the Appellant’s
motion to exclude the additional evidence from the trial was in substance, a
In regard to the amendment to the
information, it is well settled that “the state may substantively amend an
information during trial, even over the objection of the defendant, unless
there is a showing of prejudice to the substantial rights of the defendant.” State
4. Failure of Appellant’s Counsel to Timely File Brief
Joseph T. Hobson, Esquire, was appointed to represent the Appellant on August 31, 2006. The Notice of Appeal was filed on September 11, 2006 by Appellant’s trial counsel, not Mr. Hobson. The record on appeal was filed on October 17, 2006. The Appellant’s brief was required to be filed within thirty days of service of the record. On January 3, 2007 this Court filed a Notice of Intent to Dismiss because of the failure of the appellant’s attorney, Joseph T. Hobson, to file the initial brief. Rather than file the initial brief, however, the appellant’s attorney filed a motion for extension of time, claiming that he was trying to locate the record and transcripts. Such an assertion was curious, in view of the fact that both the record and transcript were filed on October 17, 2006. Moreover, the motion was insufficient in that it failed to reflect whether or not the State agreed to the extension. Nevertheless, this Court granted the extension of time and gave the appellant an additional thirty days to file the initial brief. Instead of filing the brief the appellant’s attorney filed another motion for extension of time on March 27, 2007. That motion stated: “Undersigned counsel would assure this court that his brief can be filed no later than Monday, April 23, 2007 if it would be gracious to afford one final extension of time in which to compete (sic) and file its initial brief.” This Court granted the requested extension of time. Thereafter, the appellant’s attorney still did not file the initial brief; he failed to even ask for an extension of time. This Court was forced, yet again, to file a Notice of Intent to Dismiss. Instead of filing the initial brief, the appellant’s attorney filed yet another motion for extension of time. The State, quite understandably, objected and filed a motion to dismiss. By order dated September 12, 2007, this court took the extraordinary step of ordering counsel to file the initial brief within twenty days and scheduled a hearing for counsel to show cause why, if he failed to file the brief. Attorney Hobson still did not file the brief within the twenty days required by the court. He finally filed Appellant’s brief on October 8, 2007, the date this court had scheduled for the hearing to show cause.
Attorney Joseph T. Hobson repeatedly failed to timely discharge his responsibility to prepare and file Appellant’s Brief. He has engaged in a pattern of disregarding appellate rules and the orders of this court. A copy of this Order and Opinion is being provided to the Florida Bar. Dismissing the appeal, however, would unduly punish the Appellant. It is the long-standing policy of this Court to have appeals decided on the merits whenever possible and this court therefore will not dismiss this appeal because of the above described actions of attorney Joseph T. Hobson. To the contrary, this court has expended considerable time and attention in consideration of the arguments and issues presented by the parties. This appeal is decided on its merits.
This court concludes that the judgment and sentence of the trial court should be affirmed.
IT IS THEREFORE ORDERED that the judgment and sentence of the trial court is affirmed.
Michael F. Andrews Circuit Court Judge
Raymond O. Gross
Circuit Court Judge
R. Timothy Peters
Circuit Court Judge
cc: Honorable Patrick K. Caddell
Honorable Frank N. Kaney
Office of the State Attorney
Joseph T. Hobson, Esquire
The Florida Bar