DEFENDANT’S MOTION TO COMPEL STATE TO COMPLY WITH THEIR DISCOVERY OBLIGATIONS PURSUANT TO FLORIDA TO RULE OF CRIMINAL PROCEDURE 3.220 OR ALTERNATIVELY, TO EXCLUDE EVIDENCE OR DISMISS CHARGES AGAINST DEFENDANT RANDAL THOMAS ROSADO AND INCORPORATED MEMORANDUM OF LAW

The Defendant, Randal Thomas Rosado, files this Motion to Compel the State to comply with their discovery obligations immediately, or in the alternative, to exclude evidence or dismiss the charges against the Defendant. As grounds therefore, the Defendant states as follows:

1. The Defendant was arrested on June 28, 2016. The Defendant was extradited from New York and arrived in Lee County Jail on October 8, 2016.
2. The Defendant has been incarcerated for nineteen months and has still not received a copy of the state’s discovery. The Defendant is indigent.
3. The court appointed Attorney Sebouh Gourjian as the Defenant’s counsel on January 23, 2017.
4. In a status conference on November 21, 2016, state prosecutor James D. Miller, informed the court that the state was ready for trial.
5. At a case management hearing on November 1, 2017, nearly a year later, James D. Miller informed the court that the state was still gathering discovery.
6. Defendant’s court-appointed counsel, Sebouh Gourjian, sent a proposed order that was signed by the trial judge, approving the cost of copying the state’s discovery to be provided to the Defendant. Defendant has still not received a copy of the said order, but Judge Steinbeck has acknowledged signing the order during a court hearing. No discovery documents have been provided to the Defendant at this time.
7. The Defendant has still not seen discovery. Attorney Gourjian has advised the court at multiple case management conferences (9/25/17, 11/1/17, 12/13/17) of Defendant’s intention on self-representation once he is in possession of full discovery.
8. The Defendant still languishes in jail, unable to make the excessive monetary bond imposed by the court, and the Defendant still does not have the state’s discovery.
9. Defendant requests to know exactly what the State of Florida has been doing with regard to discovery since the initial discovery documents were filed prior to November 21, 2016, over fourteen months ago, while the Defendant languishes in custody.
10. The Defendant is seeking this Court’s intervention as the State has violated their obligation of discovery under the laws and rules.
11. The Defendant requests this Court immediately compel the State to turn over all of the discovery immediately, whether revealed so far or not, or in the alternative, exclude all the evidence from any possible trial or hearing in this matter, or as another alternative, dismiss the charges against the Defendant for the long term, long standing violations of the laws and rules that the state has so far committed.
12. Nineteen months since the arrest and fifteen months since discovery process began is an egregious violation of the Defendant’s due process rights.

MEMORANDUM OF LAW AND SUPPORTING ARGUMENT

“Rule of Criminal Procedure 3.220 is designed to encourage the truth seeking process and to promote efficiency. All sides need to expect the rules will be enforced or there will be a temptation to evade them”. See Dawson v State, 58 So. 3d 924, 927 (Fla. 5th DCA 2011).

1. Prosecutor’s Discovery Obligations

A defendant’s filing of a Notice of Discovery shall bind both the prosecution and the defendant to the discovery procedures set forth in the Florida Rules of Criminal Procedure. See Rule 3.220(a), FRCP. Rule 3.220(a) specifically contemplates the use of public records requests pursuant to Chapter 119, Florida Statutes, as part of the discovery process.

Within 15 days after service of the Notice of Discovery (10/14/16), the Prosecutor “shall serve a written Discovery Exhibit which shall disclose to the defendant and permit the defendant to inspect, copy, test and photograph” specified information and material within the State’s possession or control. see Rule 3.220(b)(1), FRCP. Rule 3.220 specifies, in relevant part, the following information, which shall be disclosed by the prosecutor:

* The names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or defense thereto, or to any similar fact evidence to be presented at trial (See Fla. R. Crim. P. Rule 3.220(b)(1)(A), categorized in relevant part as further described;

* Category A: Witnesses who were present when a recorded or unrecorded statement was made by a defendant, which shall be separately identified within Category A (See Fla. R. Crim. P. Rule 3.220(b)(1)(A)(I),

* The statement of any person whose name is furnished in compliance with the above, to include any statement of any kind written, recorded or summarized in any writing or recording, to include all police and investigative reports prepared for or in connection with the case (see Fla. R. Crim. P. Rule 3.220(b)(1)(B);

* Any written or recorded statements and the substance of any oral statements made by defendant, together with the name and address of each witness to statements – 3.220(b)(1)(C),

* Whether the state has any material or information that has been provided by a confidential informant – 3.220(b)(1)(G);

* Reports or statements of experts made in connection with the case (b)(1)(J); and

* Any tangible papers or objects that the prosecuting attorney intends to use at trial that were not obtained from or that did not belong to the defendant. 3.220(b)(1)(K)

If subsequent to compliance with disclosure obligations, a party discovers additional witness or material that the party would have been under a duty to disclose or produce, the party “shall promptly disclose or produce the witness or material in the same manner as required…for initial discovery.” See, Fla. R. Crim. P. Rule 3.220(j)

Except otherwise provided for matters not subject to disclosure, neither counsel for the parties nor other prosecution or defense personnel, shall advise persons having relevant material, “nor shall they otherwise impeded opposing counsel’s investigation of the relevant case.” See 3.220(I)

The state’s discovery obligations include, but are not limited to, (1) The State’s obligation to disclose material evidence adversely affecting the credibility of a witness.” See State v. Fernandez, 141 So. 3d 1211, 1222 (Fla. 2d DCA 2014); citing Brady v Maryland, 373 U.S. 83, 87 (U.S. 1973), and citing Giglio v. United States, 405 U.S. 150, 153-154 (U.S. 1972)

Florida courts have consistently held that information and/or material in possession of law enforcement personnel is in the possession and control of the State for purposes of discovery obligations, regardless of the knowledge, or lack thereof, of the prosecutor. See Rojas v. State, 904 So. 2d 598, 600 (Fla. 5th DCA 2005), citing State v. Coney, 294 So. 2d 82, 87 (Fla. 1973) (State has a continuing duty to disclose evidence held by other agents, such as law enforcement officers); Giles v. State, 916 So. 2d 55, 58 (Fla. 2d DCA 2005) (For purposes of discovery, the state is charged with constructive knowledge of information of information possessed by other departments of the executive branch); Whites v. State, 730 So. 2d 762, 764 (Fla. 1999), citing State v. Coney, 294 So. 2d 82, 87 (Fla. 1973) (State has a continuing duty to disclose evidence held by other state agents, such as law enforcement officers, even if the defendant could have obtained the information by other means); Tarrant v. State, 668 So. 2d 223, 225 (Fla. 4th DCA 1996) (Mere fact that prosecutor had no knowledge of existence of incriminating admissions by defendant did not relieve state of its obligation to properly respond to discovery request; it is well-settled that the state is charged with constructive knowledge and possession of evidence withheld by state agents, including law enforcement officers). See also Gorham v. State, 597 So 2d 782, 784 (Fla. 1992)

The state cannot commit “a willful (sic) failure to learn that which is available to be learned in order to thwart the purpose of the (discovery) rules; lack of knowledge resulting from bad faith would not relieve the state of its duty to disclose to the defense material that is otherwise unavailable to the defense.” see State v. Counce, 392 So. 2d 1029, 1031 (Fla. 4th DCA 1981)

1. Sanctions Available for Discovery Violations

The Florida Rules of Criminal Procedure provide broad authority to the Court to fashion sanctions suitable to address discovery violations and deter future abuses of the discovery process, based on the discretion of the Court.

The court may prohibit the state from introducing into evidence any material not disclosed as required, “so as to secure and maintain fairness in the just determination of the cause.” See Fla. R. crim. P. Rule 3.220(b)(3).

If a party has failed to comply with an applicable discovery rules or with an order issued pursuant to applicable discovery rules, the court may “prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.” see Fla. R. Crim. P. Rule 3.220(n)(1).

Every request for discovery or objection made by a represented party shall be signed by at least one attorney of record; the signer constitutes a certification that the signer has read the request, response or objection and to the best of the signer’s knowledge, information or belief formed after reasonable inquiry, the request, response or objection is consistent with the rules and warranted by existing law or a good faith argument for changing the existing law (See Fla. R. crim. P. Rule 3.220(n)(3)(A)), and not interposed for improper purpose such as harassment, unnecessary delay or needless increase in litigation costs (3.220(n)(3)(B). If a certification is made in violation of the rule, the court “Shall impose on the person who made the certification, the firm or agency with which the person is affiliated, the party on whose behalf the request, response or objection is made, or any or all of the above an appropriate sanction”, which may include the payment of reasonable expenses incurred because of the violation, including a reasonable attorney’s fee. See 3.220(n)(3).

III. Court Inquiry upon Allegations of Discovery Violations by State

Where a discovery violation is brought to the trial court’s attention, the court must conduct an inquiry as to whether the violation:

(1) was willful or inadvertent;

(2) was substantial or trivial; and

(3) had a prejudicial effect on the aggrieved party’s trial preparation. See Goldsmith v. State, 2016 So. 2d 771, 774-75 (Fla. 1971); see also Guevera-Vilca v. State, 2015 Fla. App. LEXIS 5249 (Fla. 2d DCA 2015).

Even a possible discovery violation triggers the requirement to conduct a Richardson hearing, as the inquiry is intended “to flesh out whether there has indeed been a discovery violation.” Goldsmith v. State, 2016 Fla. App. LEXIS 239, (Fla. 4th DCA 2016), citing Landry v. State, 931 So 2d 1063, 1065 (Fla. 4th DCA 2006). A trial court’s ruling regarding the three prongs of Richardson “are reviewed for an abuse of discretion, but this discretion can be exercised only following a proper inquiry.” See Goldsmith v. State, 2016 Fla. App. LEXIS 239. (Fla. 4th DCA 2016), citing Brown v. State, 165 So. 3d 726, 729 (Fla. 4th DCA 2015).

Under Florida law a “willful” discovery violation is merely one that is not inadvertent. See Rutherford v Crosby, 385 F. 3d 1300, 1308 (11th Cir. 2004). In the Richardson context, the defense is prejudiced if there is reasonable possibility that the defendant’s trial preparation would have been materially different; trial preparation or strategy should be considered “materially different” if it reasonably could have benefitted the defendant, and in making that determination, “every conceivable course of action must be considered.” Guevara-Vilca v. State, 2015 Fla. App. LEXIS 5249, 8 (Fla. 2d DCA 2015), citing State v. Schopp, 653 S. 2d 1016, 1020-21 (Fla. 1995), holding clarified by Scipio v State, 928 So. 2d. 1138 (Fla. 2006). The question of prejudice in the context of a discovery violation does not depend on whether the undisclosed evidence might have made a difference in the verdict; the focus is whether the defendant was procedurally prejudiced. See Smith v. State, 7 So. 3d 473, 506 (Fla. 2009); Greehan v State, 830 So. 2d 878 (Fla. 2d DA 2002)

1. Courts Imposing Sanctions for Discovery Violations by the State

“Rule of criminal Procedure 3.220 is designed to encourage the truth-seeking process and to promote efficiency. All sides need to expect the rules will be enforced or there will be a temptation to evade them.” See Dawson v. State, 58 So. 3d 924, 927 (Fla. 5th DCA 2011).

Dismissal of Charges

State v. Oliver, 332 So. 2d 638 (Fla. 3d DCA 1975):

“Defendant was informed against for possession of cannabis [893.13, Fla. Stat.] At a hearing on December 2, 1974, defendant ordered that the State fully comply with her request for full discovery and furnish her a copy of the affidavit for search warrant and search warrant. The trial judge ordered the State to produce and deliver those documents within 15 days to the defendant. The State failed to produce the documents and on January 13, 1975, defendant filed a motion to dismiss which was granted by the trial judge after hearing argument of counsel. This appeal follows. We affirm. The State having failed to comply with the court order and the rules of criminal procedure [RCRP 3.220(a)(1)(ix)], it is within the discretion of the trial judge to dismiss the cause as a sanction [RCRP 3.220(j)] and we find no abuse of discretion in granting defendant’s motion to dismiss in the case sub judice.”

State v. McCloud, 431 So. 2d 694, 695 (Fla. 3d DCA 1983):

“After the two victims of the armed robbery with which McCloud was charged had testified at the trial and been excused, the defense learned for the first time that they had given conflicting descriptions of the perpetrators to an investigating detective. Notwithstanding a timely demand for discovery under Fla. R. Crim. P. 3.220, the state had never previously informed the defendant of the existence of the statements or the identity of the officer. As a result having found the manner in which the prosecution as conducted to be an “outrage”, the trial judge dismissed the information.

Particularly in view of the state’s failure below even to propose any appropriate alternative course of action, see Luca v. State, 376 So. 2d 1149 (Fla. 1979), we find no abuse of discretion in the imposition of this sanction for the admitted, inexcusable and significant discovery violation established by the record.”

State v Hilliard, 409 So. 2d 211 (Fla. 4th DCA 1982):

“The state’s numerous violations of discovery rules and court orders directing discovery ultimately led, on the eve of trial, to an order dismissing the information as to appellees, the court having determined on the basis of an evidentiary hearing that the state’s non-compliance was not inadvertent, the violations were substantial, and the defendants were irreparably prejudiced in the preparation of their defense. The record adequately supports the trial court’s finding and the state has failed to show an abuse of discretion.”

State v Gillis, 876 So. 2d 703, 705 (Fla. 3d DCA 2004)

“Here, the State failed to comply with the initial discovery request and four motions to compel discovery. The State’s actions in failing to provide this requested discovery compromised the defendant’s identification defense. It was crucial to the defendant to show that the footprints found at the scene did not match his. The State blatantly ignored numerous court orders thus delaying the administration of justice. See Moreles v. Perez, 445 So. 2d 393 (Fla. 3d DCA 1984) (Default judgment appropriate sanction where party failed to comply with numerous discovery orders), State v Hilliard, 409 So. 2d 211 (Fla. 4t DCA 1982(court did not abuse its discretion in dismissing information for numerous discovery violations); Singh v. Tolz, 380 So. 2d 1326 (Fla. 4th DCA 1980) (Administration of justice cannot be achieved if there is a conscious disregard of a court order). Under these circumstances, it was within the trial court’s discretion to dismiss the information and thus we affirm the order below.”

State v. Counce, 392 So 2d 1029 (Fla. 4th DCA 1981):

The trial court was correct in determining that the state’s destruction of evidence impaired the defendant’s right of access to relevant and material evidence necessary to prepare a defense, and was correct in dismissing the criminal charge based on violation of due process.

Exclusion of Evidence/Witness Testimony

State v. Sowers, 763 So.2d 394, 399 (Fla. 1st DCA 2000):

The states delay of 7.5 months in providing the name of a witness, and even longer in disclosing witness’ address, constitutes a discovery violation; the fact that the state had the witness’ name and statement at least seven months prior to disclosure justified the conclusion that the violation was willful, and the witness’s testimony of an admission by the defendant was “crucial and substantial.” The trial court was within its discretion in excluding the witness, because the delay prejudiced the defense by precluding “the timely questioning of (the witness) and any persons who might have heard the statements.”

Evanko v State, 681 So. 2d 1203 (Fla. 5th DCA 1996):

The trial court committed reversible error in allowing testimony by arresting officer as to an alleged statement by the defendant which was not timely disclosed by the state, which statement was the only proof that the defendant knew of the contraband for which possession she was being prosecuted.

Respectfully Submitted,

­­­­­­­­­­­­­­­­____________________________

By:/s/Randal Thomas Rosado

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the Clerk of Court at 1700 Monroe Street, Fort Myers, Florida 33901 and to the Office of the State Attorney at 2000 Main Street, 6th Floor, Fort Myers, Florida 33902 on this ______ day of January, 2018.

____________________________

By:/s/Randal Thomas Rosado

Defendant

2501 Ortiz Avenue

Fort Myers, Florida 33905

DEFENDANT’S MOTION TO COMPEL STATE TO COMPLY WITH THEIR DISCOVERY OBLIGATIONS PURSUANT TO FLORIDA TO RULE OF CRIMINAL PROCEDURE 3.220 OR ALTERNATIVELY, TO EXCLUDE EVIDENCE OR DISMISS CHARGES AGAINST DEFENDANT RANDAL THOMAS ROSADO AND INCORPORATED MEMORANDUM OF LAW

The Defendant, Randal Thomas Rosado, files this Motion to Compel the State to comply with their discovery obligations immediately, or in the alternative, to exclude evidence or dismiss the charges against the Defendant. As grounds therefore, the Defendant states as follows:

1. The Defendant was arrested on June 28, 2016. The Defendant was extradited from New York and arrived in Lee County Jail on October 8, 2016.
2. The Defendant has been incarcerated for nineteen months and has still not received a copy of the state’s discovery. The Defendant is indigent.
3. The court appointed Attorney Sebouh Gourjian as the Defenant’s counsel on January 23, 2017.
4. In a status conference on November 21, 2016, state prosecutor James D. Miller, informed the court that the state was ready for trial.
5. At a case management hearing on November 1, 2017, nearly a year later, James D. Miller informed the court that the state was still gathering discovery.
6. Defendant’s court-appointed counsel, Sebouh Gourjian, sent a proposed order that was signed by the trial judge, approving the cost of copying the state’s discovery to be provided to the Defendant. Defendant has still not received a copy of the said order, but Judge Steinbeck has acknowledged signing the order during a court hearing. No discovery documents have been provided to the Defendant at this time.
7. The Defendant has still not seen discovery. Attorney Gourjian has advised the court at multiple case management conferences (9/25/17, 11/1/17, 12/13/17) of Defendant’s intention on self-representation once he is in possession of full discovery.
8. The Defendant still languishes in jail, unable to make the excessive monetary bond imposed by the court, and the Defendant still does not have the state’s discovery.
9. Defendant requests to know exactly what the State of Florida has been doing with regard to discovery since the initial discovery documents were filed prior to November 21, 2016, over fourteen months ago, while the Defendant languishes in custody.
10. The Defendant is seeking this Court’s intervention as the State has violated their obligation of discovery under the laws and rules.
11. The Defendant requests this Court immediately compel the State to turn over all of the discovery immediately, whether revealed so far or not, or in the alternative, exclude all the evidence from any possible trial or hearing in this matter, or as another alternative, dismiss the charges against the Defendant for the long term, long standing violations of the laws and rules that the state has so far committed.
12. Nineteen months since the arrest and fifteen months since discovery process began is an egregious violation of the Defendant’s due process rights.

MEMORANDUM OF LAW AND SUPPORTING ARGUMENT

“Rule of Criminal Procedure 3.220 is designed to encourage the truth seeking process and to promote efficiency. All sides need to expect the rules will be enforced or there will be a temptation to evade them”. See Dawson v State, 58 So. 3d 924, 927 (Fla. 5th DCA 2011).

1. Prosecutor’s Discovery Obligations

A defendant’s filing of a Notice of Discovery shall bind both the prosecution and the defendant to the discovery procedures set forth in the Florida Rules of Criminal Procedure. See Rule 3.220(a), FRCP. Rule 3.220(a) specifically contemplates the use of public records requests pursuant to Chapter 119, Florida Statutes, as part of the discovery process.

Within 15 days after service of the Notice of Discovery (10/14/16), the Prosecutor “shall serve a written Discovery Exhibit which shall disclose to the defendant and permit the defendant to inspect, copy, test and photograph” specified information and material within the State’s possession or control. see Rule 3.220(b)(1), FRCP. Rule 3.220 specifies, in relevant part, the following information, which shall be disclosed by the prosecutor:

* The names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or defense thereto, or to any similar fact evidence to be presented at trial (See Fla. R. Crim. P. Rule 3.220(b)(1)(A), categorized in relevant part as further described;

* Category A: Witnesses who were present when a recorded or unrecorded statement was made by a defendant, which shall be separately identified within Category A (See Fla. R. Crim. P. Rule 3.220(b)(1)(A)(I),

* The statement of any person whose name is furnished in compliance with the above, to include any statement of any kind written, recorded or summarized in any writing or recording, to include all police and investigative reports prepared for or in connection with the case (see Fla. R. Crim. P. Rule 3.220(b)(1)(B);

* Any written or recorded statements and the substance of any oral statements made by defendant, together with the name and address of each witness to statements – 3.220(b)(1)(C),

* Whether the state has any material or information that has been provided by a confidential informant – 3.220(b)(1)(G);

* Reports or statements of experts made in connection with the case (b)(1)(J); and

* Any tangible papers or objects that the prosecuting attorney intends to use at trial that were not obtained from or that did not belong to the defendant. 3.220(b)(1)(K)

If subsequent to compliance with disclosure obligations, a party discovers additional witness or material that the party would have been under a duty to disclose or produce, the party “shall promptly disclose or produce the witness or material in the same manner as required…for initial discovery.” See, Fla. R. Crim. P. Rule 3.220(j)

Except otherwise provided for matters not subject to disclosure, neither counsel for the parties nor other prosecution or defense personnel, shall advise persons having relevant material, “nor shall they otherwise impeded opposing counsel’s investigation of the relevant case.” See 3.220(I)

The state’s discovery obligations include, but are not limited to, (1) The State’s obligation to disclose material evidence adversely affecting the credibility of a witness.” See State v. Fernandez, 141 So. 3d 1211, 1222 (Fla. 2d DCA 2014); citing Brady v Maryland, 373 U.S. 83, 87 (U.S. 1973), and citing Giglio v. United States, 405 U.S. 150, 153-154 (U.S. 1972)

Florida courts have consistently held that information and/or material in possession of law enforcement personnel is in the possession and control of the State for purposes of discovery obligations, regardless of the knowledge, or lack thereof, of the prosecutor. See Rojas v. State, 904 So. 2d 598, 600 (Fla. 5th DCA 2005), citing State v. Coney, 294 So. 2d 82, 87 (Fla. 1973) (State has a continuing duty to disclose evidence held by other agents, such as law enforcement officers); Giles v. State, 916 So. 2d 55, 58 (Fla. 2d DCA 2005) (For purposes of discovery, the state is charged with constructive knowledge of information of information possessed by other departments of the executive branch); Whites v. State, 730 So. 2d 762, 764 (Fla. 1999), citing State v. Coney, 294 So. 2d 82, 87 (Fla. 1973) (State has a continuing duty to disclose evidence held by other state agents, such as law enforcement officers, even if the defendant could have obtained the information by other means); Tarrant v. State, 668 So. 2d 223, 225 (Fla. 4th DCA 1996) (Mere fact that prosecutor had no knowledge of existence of incriminating admissions by defendant did not relieve state of its obligation to properly respond to discovery request; it is well-settled that the state is charged with constructive knowledge and possession of evidence withheld by state agents, including law enforcement officers). See also Gorham v. State, 597 So 2d 782, 784 (Fla. 1992)

The state cannot commit “a willful (sic) failure to learn that which is available to be learned in order to thwart the purpose of the (discovery) rules; lack of knowledge resulting from bad faith would not relieve the state of its duty to disclose to the defense material that is otherwise unavailable to the defense.” see State v. Counce, 392 So. 2d 1029, 1031 (Fla. 4th DCA 1981)

1. Sanctions Available for Discovery Violations

The Florida Rules of Criminal Procedure provide broad authority to the Court to fashion sanctions suitable to address discovery violations and deter future abuses of the discovery process, based on the discretion of the Court.

The court may prohibit the state from introducing into evidence any material not disclosed as required, “so as to secure and maintain fairness in the just determination of the cause.” See Fla. R. crim. P. Rule 3.220(b)(3).

If a party has failed to comply with an applicable discovery rules or with an order issued pursuant to applicable discovery rules, the court may “prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.” see Fla. R. Crim. P. Rule 3.220(n)(1).

Every request for discovery or objection made by a represented party shall be signed by at least one attorney of record; the signer constitutes a certification that the signer has read the request, response or objection and to the best of the signer’s knowledge, information or belief formed after reasonable inquiry, the request, response or objection is consistent with the rules and warranted by existing law or a good faith argument for changing the existing law (See Fla. R. crim. P. Rule 3.220(n)(3)(A)), and not interposed for improper purpose such as harassment, unnecessary delay or needless increase in litigation costs (3.220(n)(3)(B). If a certification is made in violation of the rule, the court “Shall impose on the person who made the certification, the firm or agency with which the person is affiliated, the party on whose behalf the request, response or objection is made, or any or all of the above an appropriate sanction”, which may include the payment of reasonable expenses incurred because of the violation, including a reasonable attorney’s fee. See 3.220(n)(3).

III. Court Inquiry upon Allegations of Discovery Violations by State

Where a discovery violation is brought to the trial court’s attention, the court must conduct an inquiry as to whether the violation:

(1) was willful or inadvertent;

(2) was substantial or trivial; and

(3) had a prejudicial effect on the aggrieved party’s trial preparation. See Goldsmith v. State, 2016 So. 2d 771, 774-75 (Fla. 1971); see also Guevera-Vilca v. State, 2015 Fla. App. LEXIS 5249 (Fla. 2d DCA 2015).

Even a possible discovery violation triggers the requirement to conduct a Richardson hearing, as the inquiry is intended “to flesh out whether there has indeed been a discovery violation.” Goldsmith v. State, 2016 Fla. App. LEXIS 239, (Fla. 4th DCA 2016), citing Landry v. State, 931 So 2d 1063, 1065 (Fla. 4th DCA 2006). A trial court’s ruling regarding the three prongs of Richardson “are reviewed for an abuse of discretion, but this discretion can be exercised only following a proper inquiry.” See Goldsmith v. State, 2016 Fla. App. LEXIS 239. (Fla. 4th DCA 2016), citing Brown v. State, 165 So. 3d 726, 729 (Fla. 4th DCA 2015).

Under Florida law a “willful” discovery violation is merely one that is not inadvertent. See Rutherford v Crosby, 385 F. 3d 1300, 1308 (11th Cir. 2004). In the Richardson context, the defense is prejudiced if there is reasonable possibility that the defendant’s trial preparation would have been materially different; trial preparation or strategy should be considered “materially different” if it reasonably could have benefitted the defendant, and in making that determination, “every conceivable course of action must be considered.” Guevara-Vilca v. State, 2015 Fla. App. LEXIS 5249, 8 (Fla. 2d DCA 2015), citing State v. Schopp, 653 S. 2d 1016, 1020-21 (Fla. 1995), holding clarified by Scipio v State, 928 So. 2d. 1138 (Fla. 2006). The question of prejudice in the context of a discovery violation does not depend on whether the undisclosed evidence might have made a difference in the verdict; the focus is whether the defendant was procedurally prejudiced. See Smith v. State, 7 So. 3d 473, 506 (Fla. 2009); Greehan v State, 830 So. 2d 878 (Fla. 2d DA 2002)

1. Courts Imposing Sanctions for Discovery Violations by the State

“Rule of criminal Procedure 3.220 is designed to encourage the truth-seeking process and to promote efficiency. All sides need to expect the rules will be enforced or there will be a temptation to evade them.” See Dawson v. State, 58 So. 3d 924, 927 (Fla. 5th DCA 2011).

Dismissal of Charges

State v. Oliver, 332 So. 2d 638 (Fla. 3d DCA 1975):

“Defendant was informed against for possession of cannabis [893.13, Fla. Stat.] At a hearing on December 2, 1974, defendant ordered that the State fully comply with her request for full discovery and furnish her a copy of the affidavit for search warrant and search warrant. The trial judge ordered the State to produce and deliver those documents within 15 days to the defendant. The State failed to produce the documents and on January 13, 1975, defendant filed a motion to dismiss which was granted by the trial judge after hearing argument of counsel. This appeal follows. We affirm. The State having failed to comply with the court order and the rules of criminal procedure [RCRP 3.220(a)(1)(ix)], it is within the discretion of the trial judge to dismiss the cause as a sanction [RCRP 3.220(j)] and we find no abuse of discretion in granting defendant’s motion to dismiss in the case sub judice.”

State v. McCloud, 431 So. 2d 694, 695 (Fla. 3d DCA 1983):

“After the two victims of the armed robbery with which McCloud was charged had testified at the trial and been excused, the defense learned for the first time that they had given conflicting descriptions of the perpetrators to an investigating detective. Notwithstanding a timely demand for discovery under Fla. R. Crim. P. 3.220, the state had never previously informed the defendant of the existence of the statements or the identity of the officer. As a result having found the manner in which the prosecution as conducted to be an “outrage”, the trial judge dismissed the information.

Particularly in view of the state’s failure below even to propose any appropriate alternative course of action, see Luca v. State, 376 So. 2d 1149 (Fla. 1979), we find no abuse of discretion in the imposition of this sanction for the admitted, inexcusable and significant discovery violation established by the record.”

State v Hilliard, 409 So. 2d 211 (Fla. 4th DCA 1982):

“The state’s numerous violations of discovery rules and court orders directing discovery ultimately led, on the eve of trial, to an order dismissing the information as to appellees, the court having determined on the basis of an evidentiary hearing that the state’s non-compliance was not inadvertent, the violations were substantial, and the defendants were irreparably prejudiced in the preparation of their defense. The record adequately supports the trial court’s finding and the state has failed to show an abuse of discretion.”

State v Gillis, 876 So. 2d 703, 705 (Fla. 3d DCA 2004)

“Here, the State failed to comply with the initial discovery request and four motions to compel discovery. The State’s actions in failing to provide this requested discovery compromised the defendant’s identification defense. It was crucial to the defendant to show that the footprints found at the scene did not match his. The State blatantly ignored numerous court orders thus delaying the administration of justice. See Moreles v. Perez, 445 So. 2d 393 (Fla. 3d DCA 1984) (Default judgment appropriate sanction where party failed to comply with numerous discovery orders), State v Hilliard, 409 So. 2d 211 (Fla. 4t DCA 1982(court did not abuse its discretion in dismissing information for numerous discovery violations); Singh v. Tolz, 380 So. 2d 1326 (Fla. 4th DCA 1980) (Administration of justice cannot be achieved if there is a conscious disregard of a court order). Under these circumstances, it was within the trial court’s discretion to dismiss the information and thus we affirm the order below.”

State v. Counce, 392 So 2d 1029 (Fla. 4th DCA 1981):

The trial court was correct in determining that the state’s destruction of evidence impaired the defendant’s right of access to relevant and material evidence necessary to prepare a defense, and was correct in dismissing the criminal charge based on violation of due process.

Exclusion of Evidence/Witness Testimony

State v. Sowers, 763 So.2d 394, 399 (Fla. 1st DCA 2000):

The states delay of 7.5 months in providing the name of a witness, and even longer in disclosing witness’ address, constitutes a discovery violation; the fact that the state had the witness’ name and statement at least seven months prior to disclosure justified the conclusion that the violation was willful, and the witness’s testimony of an admission by the defendant was “crucial and substantial.” The trial court was within its discretion in excluding the witness, because the delay prejudiced the defense by precluding “the timely questioning of (the witness) and any persons who might have heard the statements.”

Evanko v State, 681 So. 2d 1203 (Fla. 5th DCA 1996):

The trial court committed reversible error in allowing testimony by arresting officer as to an alleged statement by the defendant which was not timely disclosed by the state, which statement was the only proof that the defendant knew of the contraband for which possession she was being prosecuted.

Respectfully Submitted,

­­­­­­­­­­­­­­­­____________________________

By:/s/Randal Thomas Rosado

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the Clerk of Court at 1700 Monroe Street, Fort Myers, Florida 33901 and to the Office of the State Attorney at 2000 Main Street, 6th Floor, Fort Myers, Florida 33902 on this ______ day of January, 2018.

____________________________

By:/s/Randal Thomas Rosado

Defendant

2501 Ortiz Avenue

Fort Myers, Florida 33905