County Criminal 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, (Fla. 6th Cir. App. Ct. April 4, 2008).

 

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

JANICE SHARON CURTIS

 

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 06-00062 APANO

                                                                        UCN522006AP000062XXXXCR

 

STATE OF FLORIDA

            Appellee.

__________________________________/

 

 

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

 

            PETERS, Judge.

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 Battery and Violation of Pretrial Release, however, amended the dates of offense on the Violation of Pretrial Release to between May 21 and June 1, 2006.  A trial was held on August 10, 2006 in front of the Honorable Frank N. Kaney, a visiting Senior Circuit Court Judge.  The Appellant was found Not Guilty on the Battery count and Guilty on the Violation of Pretrial Release.

Issues and Analysis

1. Faretta Hearing

The 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 198 (Fla. 1992), cert. denied, 505 U.S. 1210, 112 S.Ct. 3006, 120 L.Ed.2d 881 (1992).  This argument is without merit.

2. Testimony of Witness David Lowman

The 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 Richardson hearing and failed to do so.   

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.  See Smith v. State, 515 So.2d 182 (Fla. 1987) cert. denied, 485 U.S. 971, 108 S.Ct. 1249, 99 L.Ed.2d 447 (1988); Esty v. State, 642 So.2d 1074 (Fla. 1994).  If there was a discovery violation, the inquiry, a Richardson hearing, must focus on whether there was procedural rather than substantive prejudice.  Thompson v. State, 565 So.2d 1311 (Fla. 1990).  That inquiry involves two aspects. First, courts must determine whether the violation impaired the defendant's ability to prepare for trial.  Wilcox v. State, 367 So.2d 1020, 1023 (Fla.1979).  “Once it has been ascertained whether the discovery violation hindered the defendant in his preparation for trial, the court must consider the nature of the violation in fixing upon a sanction. Prejudice may be averted through the simple expedient of a recess to permit the questioning or deposition” of a witness. Wilcox, 367 So.2d at 1023.   The failure of a trial court to conduct a Richardson hearing is subject to a harmless error review.  Only if the appellate court can determine beyond a reasonable doubt that the defense was not procedurally prejudiced by the underlying discovery violation can the error be considered harmless.  State v. Schopp, 653 So.2d 1016 (Fla. 1995); Scipio v. State, 928 So.2d 1138 (Fla. 2006).

            In the 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 Richardson hearing.  This argument is without merit.

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.

 

(R.71).  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 Battery and Violation of Pretrial Release, however, amended the dates of offense on the Violation of Pretrial Release to between May 21 and June 1, 2006.

            In 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 Richardson hearing.  The court found that there was no discovery violation and certainly no willful discovery violation.  It would therefore have been an abuse of discretion to exclude the evidence. See Wheeler v. State, 754 So.2d 827 (Fla. 2d DCA 2000).  The extreme sanction of excluding evidence should be used only as a last resort. State v. Eaton, 868 So.2d 650 (Fla. 2 DCA 2004); Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998); State v. Schwartz, 605 So.2d 1000 (Fla. 2d DCA 1992); Wilkerson v. State, 461 So.2d 1376, 1379 (Fla. 1st DCA 1985).  The trial court’s refusal to exclude the evidence was proper.  The continuance of the trial for two days provided the Appellant with the opportunity to review the additional evidence and further prepare for trial.

            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 v. Anderson, 537 So.2d 1373, 1375 (Fla.1989).  In the present case the amendment was done prior to trial and merely clarified a detail of the existing charge and could not reasonably have caused the Appellant any prejudice.  The elements of the crime after the information was amended are no different from the crime charged in the original information.  See Toussaint v. State, 755 So.2d 170 (Fla. 4th DCA 2000).  The trial court did not err in allowing the State to amend the information prior to trial.

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. 

Conclusion

            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.

 

            ORDERED at Clearwater, Pinellas County, Florida this ____ day of March, 2008.

 

 

 

_____________________________

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