Cauley v. State, AS-310

Citation444 So.2d 964
Decision Date19 October 1983
Docket NumberNo. AS-310,AS-310
PartiesTerry CAULEY, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

J. LaDon Dewrell, of Dewrell, Blue & Brannon, Fort Walton, for appellant.

John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

AFFIRMED. Brown v. State, 376 So.2d 382 (Fla.1979); State v. Carr, 438 So.2d 826 (Fla.1983).

MILLS, SHIVERS and ZEHMER, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

In his motion for rehearing, appellant contends that we erred in affirming this case upon the authority of Brown v. State, 376 So.2d 382 (Fla.1979), and State v. Carr, 438 So.2d 826 (Fla.1983), because the issue on appeal is dispositive of the case and this is agreed to by the state. Appellant also moves to supplement the record with a transcript from the nolo contendere plea hearing which affirmatively shows that both parties agreed that the issues reserved for appeal are dispositive.

Appellant pled nolo contendere and specifically reserved the right to appeal the trial court's order denying his motion to suppress. We must dismiss an appeal of a criminal conviction based upon a nolo contendere plea unless the dispositiveness of the issues on appeal is affirmatively shown by the record. An appellant has the burden of filing a sufficient record with this court to demonstrate this fact and cannot expect to receive a favorable ruling if he does not carry that burden. Because appellant has now demonstrated to us that a ruling on the motion to suppress is dispositive in the interest of justice we grant his motion to supplement the record and his motion for rehearing.

During the suppression hearing, the state used two witnesses whose names had not been disclosed in response to appellant's request for discovery. Despite appellant's objections, the trial court failed to inquire into the circumstances surrounding the state's failure to provide this discovery in order to determine whether appellant had been prejudiced thereby. The record contains ample support for a finding that prejudice to appellant did occur. There is no evidence in the record that appellant was aware of the identity of the two state witnesses; and without their testimony, there was no evidence sufficient to justify the detention of appellant. Appellant contends that under Richardson v. State, 246 So.2d 771 (Fla.1971), his conviction must be reversed. We agree.

Rule 3.220, Florida Rules of Criminal Procedure, sets forth provisions governing discovery in criminal cases. Rule 3.220(j), which provides the various sanctions available to a trial court if the prosecution fails to comply with the discovery rule, states that "if, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule ... the court may ..." impose sanctions. (Emphasis added.) Since a ruling on a motion to suppress is often dispositive of the case on the merits, it is just as important at a suppression hearing as at trial that the court, upon appropriate objection by the defendant, conduct a Richardson type inquiry to determine the existence and extent of prejudice, if any, resulting from the state's failure to provide discovery in accordance with the rule. Therefore, we conclude...

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3 cases
  • Braggs v. State
    • United States
    • Florida District Court of Appeals
    • June 10, 2009
    ...court will consider new arguments made for the first time on rehearing when the justice of the cause is persuasive); Cauley v. State, 444 So.2d 964 (Fla. 1st DCA 1984) (allowing dispositive issue to be brought for the first time on rehearing); accord Walker v. State, 284 So.2d 415 (Fla. 2d ......
  • Duckworth v. State
    • United States
    • Florida District Court of Appeals
    • May 24, 1985
    ...appeals where the issue sought to be reversed was not dispositive of the case. State v. Carr, 438 So.2d 826 (Fla.1983); Cauley v. State, 444 So.2d 964 (Fla. 1st DCA 1984); Turner v. State, 429 So.2d 318 (Fla. 1st DCA 1983); Puccio v. State, 424 So.2d 85 (Fla. 1st DCA 1982); Hardison v. Stat......
  • James v. State, 83-60
    • United States
    • Florida District Court of Appeals
    • April 26, 1984
    ...appellee. PER CURIAM. DISMISSED. See Brown v. State, 376 So.2d 382 (Fla.1979); State v. Carr, 438 So.2d 826 (Fla.1983); Cauley v. State, 444 So.2d 964 (Fla. 1st DCA 1984). See also United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 DAUKSCH, SHARP and COWART, JJ., concur. ...

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