County Criminal Court: CRIMINAL LAW – Evidence – discovery – Public Defender attorney’s fees – trial court may properly exercise discretion to permit or deny evidence after allegation of a discovery violation and remedy of exclusion is sought, the trial court may exercise its discretion to permit or deny the evidence after a Richardson hearing. Where the discovery violation was not willful, and the Defendant had an opportunity to read the witness’s statement and to question the witness before trial and did not ask for a continuance or seek other sanction, it was within the trial court’s discretion to permit the witness’s testimony. Imposition of a Public Defender fee was improper where the trial court failed to advise the Defendant of her right to a hearing to contest the fee. Judgment affirmed, remanded to the trial court for further proceedings on the PD fee. Theresa Mari Labelle v. State. Appeal No. 08-00073APANO (Fla. 6th Cir.App.Ct. September 18, 2009).
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
THERESA MARI LABELLE
v. Appeal No. CRC 08-00073 APANO
Opinion filed _____________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge Susan H. Bedinghaus
Lynda B. Barack, Esquire
Attorney for Appellant
Brett J. Szematowicz, Esquire
Attorney for Appellee
ORDER AND OPINION
THIS MATTER is before the Court on Appellant, Theresa Mari Labelle’s, appeal from a conviction, after a jury trial, of Battery, a first degree misdemeanor, in violation of § 784.03 Fla. Stat. (2006). After review of the record and the briefs, this Court affirms the judgment but reverses the imposition of Public Defender attorney’s fees.
Factual Background and Trial Court Proceedings
On November 16, 2007, a Misdemeanor
Information was filed charging the Appellant, Theresa Mari Labelle, with
Imposition of Public Defender Fee
It is conceded that the trial court
erred by failing to advise Ms. Labelle of her right to a hearing to contest the
amount of the Public Defender fee imposed by the court.
“Where exclusion of evidence or
other sanction is sought because of a discovery violation, Richardson
holds that the trial court's discretion can be properly exercised only after an
adequate inquiry is made into three areas: (1) whether the discovery violation
was willful or inadvertent; (2) whether it was trivial or substantial; and (3)
whether it had a prejudicial effect on the opposing party's trial preparation. 246
So.2d at 775. Prejudice in this context means procedural prejudice
significantly affecting the opposing party's preparation for trial.” McDuffie
v. State, 970 So.2d 312, 321 (
In the present case it is conceded
that there was a discovery violation. The
trial court made adequate initial inquiry into the surrounding circumstances of
the violation and the question of whether it was inadvertent or willful. The trial court’s finding that the discovery
violation was not willful is supported by the record. The trial court also made adequate inquiry
into the question of the prejudicial effect on Appellant’s trial
preparation. The trial court’s finding
that there was insufficient grounds to impose the sanction of excluding
witnesses was supported by the record and controlling case authority. There were other adequate remedies to address
the asserted procedural prejudice. During
the course of the
Based upon the
foregoing, this court concludes the trial court conducted an adequate
IT IS THEREFORE ORDERED that the judgment of the trial court is affirmed but the imposition of Public Defender attorney’s fees is reversed. This matter is remanded to the trial court with directions to timely afford Appellant an opportunity object to the amount of Public Defender attorney’s fees and if necessary conduct an evidentiary hearing on that issue.
ORDERED at Clearwater, Florida this 18th day of September, 2009.
Original opinion entered by Circuit Judges R. Timothy Peters, Michael F. Andrews, & Raymond O. Gross.
cc: Honorable Susan H. Bedinghaus
Lynda B. Barack, Esquire
Office of the State Attorney