Carnivale v. State, 72--443

• Citation: 271 So.2d 793
• Decision Date: 10 January 1973
• Docket Number: No. 72--443,72--443
• Court: Florida District Court of Appeals
• Parties: Clarence Joseph CARNIVALE, Appellant, v. The STATE of Florida, Appellee.

Page 793

271 So.2d 793

Clarence Joseph CARNIVALE, Appellant, v. The STATE of Florida, Appellee.

No. 72--443.

District Court of Appeal of Florida, Third District.

Jan. 10, 1973.

Rehearing Denied Feb. 5, 1973.

Phillip A. Hubbart, Public Defender, Walter S. Holland, Sp. Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.

Before BARKDULL, C.J., and CHARLES CARROLL and HAVERFIELD, JJ.

PER CURIAM.

The appellant seeks review of his conviction and sentence. The record reveals the following: An information was filed against the defendant (Carnivale) and a co-defendant (Leonard L. DeLong). They were charged with unlawfully and feloniously breaking and entering with intent to commit grand larceny, in violation of § 810.01, Fla.Stat., F.S.A., and with unlawfully and feloniously stealing personal property from a dwelling with a value in excess of $100.00, in violation of § 811.021, Fla.Stat., F.S.A. The case came on for trial before the Honorable Murray Goodman.

DeLong had apparently turned State's evidence the morning of the trial, but trial counsel for the appellant was not informed. The first witness called by the State was Leonard L. DeLong, formerly a co-defendant in this cause. Defense counsel objected to the testimony of Mr. DeLong upon the basis that he had not been listed as a witness in the Statement of Particulars and Discovery, and the defense had no prior opportunity to depose him. Defense counsel was unaware that DeLong had turned State's evidence and was going to testify as a witness for the State. The court overruled the defendant's objections upon the ground that Mr. DeLong was listed on all of the pleadings as a co-defendant and that the defendant (Carnivale) was not unaware that Mr. DeLong might testify. However, the court's ruling completely overlooked the fact that the defendant (Carnivale) was not entitled to depose him until after DeLong had turned State's evidence and entered a plea of guilty. DeLong's constitutional protection against self-incrimination would have been violated had defendant's attorneys been allowed to depose DeLong prior to his turning State's evidence.

The State Attorney's office was under a duty to inform Carnivale's counsel of the fact that DeLong had turned State's evidence. DeLong had entered a plea of guilty the morning of the trial. At no time after that and up to the time that Carnivale's trial began at 2:00 in the afternoon was the public defender informed of DeLong's new status as a potential witness. The court's refusal to exclude DeLong's testimony or, in the alternative, its failure to suggest either a recess or a continuance to allow Carnivale's counsel to depose or converse with DeLong regarding his testimony, constitutes reversible error.

Florida Rule of Criminal Procedure 3.220, 33 F.S.A., provides for discovery in criminal cases. The defendant invoked Rule 3.220 in this cause and the State complied with said section by filing a Statement of Particulars and Discovery. The purpose behind this particular section of the Rules of Criminal Procedure is to enable a defendant to eliminate the likelihood of surprise at trial and to further enable him to plan his defense, since it would afford him necessary time to interview prospective witnesses. Ramirez v. State, Fla.App.1970, 241 So.2d 744. Once a defendant chooses to use this exchange of witness provision it becomes mandatory that the prosecuting attorney comply with the rule. Cacciatore v. State, Fla.App.1969, 226 So.2d 137.

In a recent decision, Richardson v. State, Fla.1971, 246 So.2d 771, the Florida Supreme Court was faced with circumstances very similar to the facts of the case at bar. In this latter decision, the court noted that it is incumbent upon the trial judge to determine whether the State's non-compliance with Rule 3.220 has resulted in harm or prejudice to the defendant. If no such harm or prejudice results, then there is no reversible error. Howard v. State, Fla.App.1970, 239 So.2d 83; Buttler v. State, Fla.App.1970, 238 So.2d 313; Wilson v. State, Fla.App.1969, 220 So.2d 426. However, the court stated in Richardson v. State, supra, that the trial judge must adequately inquire into all the surrounding circumstances in order to determine if prejudice or harm would result to the defendant by the non-compliance by the State with Rule 3.220. The court approved the following language from Ramirez v. State, supra:

'The point is that if, during the course of the proceedings, it is brought to the attention of the trial court that the state has failed to comply with Rule 1.220(e)CrPR, the court's discretion can be properly exercised Only after the court has made an adequate inquiry into all of the surrounding circumstances. Without intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state's violation was inadvertent or wilful, whether the...