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).















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





            PETERS, Judge.

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 Battery, a first degree misdemeanor.  The case proceeded to jury trial on May 15, 2008.  Both parties announced they were ready for trial.  After the jury was selected, but before the jury was sworn, Appellant’s trial counsel brought to the court’s attention that he had requested a copy of one witness’s written statement and had not received it and that he had just been informed by another witness that he had provided a written statement to the police that had not been provided in discovery.  The ensuing discussion established that there were three written witness statements that had not been fully provided in discovery.  Appellant’s trial counsel had known about one of the three statements and requested a copy from the State in January 2008.  The State had marked their file to order all three witness statements from the police, but none were thereafter provided.  The State, after a recess, produced the witness statements.  Appellant’s trial counsel objected argued Appellant was prejudiced, moved to strike the state witnesses and demanded a Richardson hearing.   After initial inquiry, the court found there was no willful violation and then inquired and heard argument as to whether the violation was substantial and whether the Appellant was prejudiced.  Appellant’s trial counsel argued she was prejudiced.  The State argued there was no harm.  The court stated that she was not going to exclude any of the witnesses from trial based on what she had heard so far.  Appellant’s trial counsel was then afforded another opportunity to talk to the witnesses.  When court reconvened, Appellant’s trial counsel requested a ruling on the Richardson hearing.  The court provided no further ruling or findings.  Instead, the court asked if Appellant’s trial counsel was still requesting to strike the witnesses.  There followed an “indiscernible” exchange between the court and Appellant’s trial counsel.  Appellant’s trial counsel then stated “Judge, I’m just clarifying your order.  You said it wasn’t a willful violation, so we can move on from there.”  The jury found the Ms. Labelle guilty.  The trial court adjudicated the Appellant guilty and imposed sentence.  The court imposed a Public Defender fee of $500.00 without advising Ms. Labelle of her right to a hearing to contest the amount of the Public Defender fee.  A notice of appeal was timely filed.  Thereafter a motion to correct sentencing error was filed in the trial court on March 17, 2009 to address the issue of the imposition of the Public Defender fee without advising Appellant of her right to a hearing.  The trial court failed to rule on that motion.

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.  Fla. R. Crim. P. 3.720 (d)(1); Wilson v. State, 675 So2d 613 (Fla. 2nd DCA 1996).

The Richardson Hearing

“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 (Fla. 2007).  The sanction of excluding evidence should only be imposed when there is no other adequate remedy.  Id. at 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 Richardson hearing, Appellant’s trial counsel was provided the witness’ statements and did question the involved witnesses.  Appellant never requested a continuance or any sanction other than excluding witnesses.  Even after talking with the witnesses for the last time, and upon final inquiry by the court, Appellant’s trial counsel still did not request a continuance.


Based upon the foregoing, this court concludes the trial court conducted an adequate Richardson hearing.  The rulings made were supported by the record and within the trial court's lawful discretion.  However 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.  The trial court then compounded the error by failing to rule on a motion to correct sentencing error that was filed to address the issue.  We affirm the judgment but reverse the imposition of Public Defender attorney’s fees.

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