County Criminal Court: CRIMINAL LAW - Discovery Violation. A defendant in a probation revocation proceeding is entitled to reasonable discovery; since defendant raised the issue that the videotape was not provided to him, it was the court’s duty to have a Richardson hearing in order to determine the possible prejudice to the defendant. Order of Suppression reversed. Rodriguez v. State, No. 066707CFAWS, (Fla. Cir.App.Ct. November 30, 2007).

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

LUCAS RODRIGUEZ,

Appellant,

v. Appeal No: 066707CFAWS

Lower No: 0504852MMAWS

STATE OF FLORIDA,

Appellee.

____________________/

Joseph P. Hobson, Esq.,

for appellant.

Robert l. Ehrhardt, Esq, A.S.A. .

for appellee.

ORDER AND OPINION

Appellant was charged with battery on July 20, 2005. On February 23, 2006, appellant entered a plea of no lo contendere, receiving a twelve month probation with anger management and fines of $645.00.

On July 14, 2006, appellant’s probation officer, John Rowland, filed an affidavit alleging a violation of probation based upon appellant’s arrest on June 9, 2006 for the crimes of DUI and Felony DWLS. On August 2, 2006, Officer Rowland filed a follow up affidavit adding on the violation that the appellant had failed to pay the cost of supervision.

On November 13, 2006, appellant had an evidentiary hearing on the alleged violations, one of which was the appellant’s arrest for DUI. In the course of the testimony of Pasco Deputy Michael Toczylwoski, he was asked if the investigation was videotaped, and the deputy replied that it was, audio and video, and that it was impounded as evidence. At that point, defense counsel informed the court that they were not provided with a copy of that video. The defense attorney said “Defense is not ready at this time based on the fact that we have not been provided with evidence.” The state attorney stated “Your Honor, I am sure they have the evidence in their felony file.” The court said the case will proceed, and that he was not going to continue it. At that point, defense counsel stated “[f]or the record I continue to object to continuing with this proceeding without being able to review all of the evidence available…”. The state advised the court that they had no intention of using the video tape. Defense counsel said “It could exonerate my client, for all I know.” The court stated the case would proceed. Appellant argues that this was error, this Court agrees.

A defendant in a probation revocation proceeding is entitled to reasonable discovery pursuant to Florida Rule of Criminal Procedure 3.220. Cuciak v. State  410 So.2d 916 (Fla., 1982). An inquiry pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971), should be made by the trial court when a violation of the discovery rules occurs, but the failure to make such an inquiry does not require reversal when an appellate court finds to its satisfaction that the error was harmless. Cuciak at 917. In this case, the defendant raised the issue that the videotape was not provided to him. Since defendant raised the issue, it was the court’s duty to have a Richardson hearing in order to determine the possible prejudice to the defendant. Id. Here, the court did not make the required inquiry. Under these facts, this Court can not say the error was harmless.
ORDERED AND ADJUDGED that the judgment and sentence is REVERSED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County,

Florida this ________ day of November, 2007.

________________________

W. Lowell Bray, Jr.,

Circuit Judge

_______________________

Daniel D. Diskey

Circuit Judge

______________________

Stanley R. Mills

Circuit Judge

Copies furnished to:

Joseph T. Hobson, Esq.

Office of the State Attorney