Coby v. State
| Decision Date | 21 April 1981 |
| Docket Number | No. 79-528,79-528 |
| Citation | 397 So.2d 974 |
| Parties | John Edmund COBY, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and David J. Finger, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
Before HENDRY, SCHWARTZ and NESBITT, JJ.
The issue before us is whether the defendant was entitled to disclosure of the identity of a confidential informant pursuant to Florida Rule of Criminal Procedure 3.220(a)(1)(i). Under the circumstances presented, we find that he was, and reverse the defendant's adjudication of guilty on the violation of probation and remand the cause to the trial court to first determine, in an in-camera hearing, if disclosure as to the identity of the confidential informant would have been of material assistance to the defense; and, in the event that it would, for the trial court to require disclosure and then re-try the defendant.
On October 3, 1977, the defendant was placed on three years probation following a plea of nolo contendere. On January 1, 1979, he was charged with violating his probation by possession and sale of heroin and cocaine to a police officer on August 23, 1978 and again on August 28, 1978. Negotiations for the sale were initiated through a confidential informant who was present throughout the first transaction. The same was true with respect to the second transaction except the confidential informant was not actually present when the contraband and money were exchanged.
Only the police officer and the defendant testified at the probation revocation proceeding. The police officer's testimony was confusing with respect to the physical size of the defendant. Otherwise, the police officer was relatively certain as to the defendant's identity as the offender. The defendant did not deny that the policy officer purchased the contraband from someone. He does, however, deny that he was the one who sold the narcotics. His defense was "misidentification." The defendant's position is that the disclosure of the confidential informant's identity is significant to the issue of identification. The trial court denied defendant's motion to compel disclosure of the confidential informant or to conduct an in-camera hearing. It is from the denial of that motion that the defendant pursues this appeal.
It is settled that a defendant has the right to utilize the discovery provisions of Florida Rule of Criminal Procedure 3.220 at probation revocation hearings as well as at trial. Hines v. State, 358 So.2d 183 (Fla.1978). In Treverrow v. State, 194 So.2d 250 (Fla.1967), the Supreme Court established some of the guidelines to be considered in determining whether an exception to the state's privilege against non-disclosure of a confidential informant exists. In this case, all of the factors articulated are applicable because: (1) it was the prosecutor who first referred to the confidential informant; (2) the confidential informant participated to a substantial degree in the transaction; (3) the accused denied guilt; and (4) there after was no independent evidence of the accused's guilt.
This court has previously recognized the right to disclosure of a...
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