Cuciak v. State

• Decision Date: 18 February 1981
• Docket Number: No. 79-1466,79-1466
• Citation: 394 So.2d 500
• Parties: Ronald Anthony CUCIAK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 500

394 So.2d 500

Ronald Anthony CUCIAK, Appellant, v. STATE of Florida, Appellee.

No. 79-1466.

District Court of Appeal of Florida, Fourth District.

Feb. 18, 1981.

Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.

BERANEK, Judge.

Ronald Anthony Cuciak, defendant in the trial court, appeals an order revoking his probation and imposing a judgment and sentence. At issue is whether a defendant in a probation revocation proceeding has the right to discovery pursuant to Florida Rule of Criminal Procedure 3.220. A secondary issue is whether a violation of discovery rules in a probation revocation proceeding requires a Richardson ¹ hearing. We answer in the affirmative as to the right to discovery. As to the necessity for an inquiry regarding prejudice, we conclude that Richardson and the cases following it are applicable in a limited sense. We also certify these matters as involving questions of great public importance.

As a result of a burglary charge, defendant was placed on probation for a period of three years. During the probationary term, he was charged with violating his probation (1) by failing to stop and remain at the scene of an accident involving death or personal injuries, in violation of Section 316.027, Florida Statutes (1979), and by failing to leave his name and address as required by Section 316.062, Florida Statutes (1979); (2) by driving while impaired, in violation of Section 316.193, Florida Statutes (1979); and (3) by driving a motor vehicle while his license was suspended, in violation of Section 322.34, Florida Statutes (1979).

Shortly after the affidavit of violation was filed, defense counsel filed a written demand for discovery to which the State made no response. The probation revocation hearing commenced some two months thereafter. At the outset, defense counsel objected and informed the court of the unanswered discovery demand. The same objection was registered as each witness began to testify. The court denied all objections.

In Hines v. State, 358 So.2d 183, 185 (Fla.1978), the Supreme Court stated:

If a probationer needs additional information in order to properly prepare a defense to the charges, the various methods of discovery under our rules are available to him.

Although this language was dictum, we cannot disregard it or the various cases dealing with discovery in violation of probation matters. See Suarez v. State, 377 So.2d 769 (Fla. 3d DCA 1979); Cioeta v. State, 367 So.2d 718 (Fla. 3d DCA 1979); and Sukert v. State, 325 So.2d 439 (Fla. 3d DCA 1976). With great reluctance, we conclude the language from Hines requires we rule that a defendant is entitled to discovery in violation of probation proceedings. Were we considering this without the Hines decision, we would hold otherwise and would be influenced by the following arguments against discovery which are listed here in catalogue fashion.

(1) Present Factual Status. Discovery is not presently conducted on any substantial basis in violation of probation matters. This case is such an example. We note that discovery would, of course, be available in any situation where the probation violation is also a substantive offense upon which the State Attorney has filed an information. Further, informal discovery by consent may occur in probation matters or the trial court may order certain limited discovery upon specific motion by defendant.

(2) Hines' Progeny. The cases citing the Hines decision on this issue are not definitive. In Suarez v. State, supra, and Cioeta v. State, supra, the court relied upon Hines but did not actually discuss the issue of whether discovery was a right. Instead, the court considered the matter solely as a question of whether the defendant had demonstrated prejudice. In Cioeta, supra, 719, the court concluded that a discovery violation by the State required an examination of the record "to see whether he (defendant) was given a full opportunity to explain away the accusation against him." Although Hines has been in existence since April, 1978, it apparently has not substantially changed the procedures followed prior to its issuance.

(3) Rules of Criminal Procedure. Generally, with specific limited exceptions, the rules of criminal procedure are not applicable to violation of probation matters. See Rule 3.790 which governs probation. This rule is within Subsection XIV, which is entitled "Sentence." All of the procedures for a revocation and sentence are contained within a single paragraph which does not mention discovery.

(4) Subsection VI, Rule 3.220 Discovery. The rules of criminal procedure contain a subsection on discovery, Rule 3.220. A reading of this rule leads us to the conclusion that it contemplates a trial context. It is based on the American Bar Association Standards for criminal justice relating to discovery and procedure before trial which do not provide for discovery in a probation revocation proceeding. Indeed, the ABA Standards on Probation themselves make no mention whatsoever of discovery. Thus the source documents used by the Committee in preparing Rule 3.220 inferentially indicate that discovery in probation matters was not contemplated. Furthermore, the entire rule is written in terms of the "indictment or information" and the "offense charged" therein. The prosecuting attorney is directly involved, while in probation matters the probation officer is generally the person submitting the affidavit upon which the trial court issues a warrant. Section VI, containing Rule 3.220, is the only section of the rules of criminal procedure pertaining to discovery. ²

(5) Distinctions: Trial versus Probation Revocation. There are major distinctions between a criminal trial and a violation of probation proceeding. Indeed, there are very few similarities. Probation revocation is an informal hearing with no right to a jury trial. The charging affidavit need not meet the same strict requirements as an indictment or information. The informal nature of the proceedings permits deviation from the strict rules of evidence; consequently, the admission of hearsay is not error. Moreover, the burden of proof is entirely different. It is only necessary to satisfy the conscience of the court. The speedy trial rule does not apply and probation revocation occurs on a totally different time schedule from that of a criminal trial. Revocation may be based on non-criminal acts and the defendant may be required to take the stand and testify to the non-criminal conduct. Neither double jeopardy concepts nor the exclusionary rule applies, so evidence seized in violation of defendant's constitutional rights may be admitted against him. There is no right to pre-hearing bail and a defendant may be required to remain incarcerated pending a hearing.

See generally, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Bernhardt v. State, 288 So.2d 490 (Fla.1974); Roberts v. State, 154 So.2d 695 (Fla.1963); Brill v. State, 159 Fla. 682, 32 So.2d 607 (Fla.1947); People v. DeWitt, 78 Ill.2d 82, 34 Ill.Dec. 319, 397 N.E.2d 1385 (Ill.1979); Sections 947.23, 948.06, and 949.11, Florida Statutes (1979); and Florida Rule of Criminal Procedure 3.220.

The discovery envisioned by Rule 3.220 is time consuming. Upon written demand by the defense, the State must disclose the names of its witnesses and statements within fifteen days; defense counsel must make a reciprocal disclosure to the prosecutor within an additional fifteen days. The filing of a motion for protective order automatically stays these time periods. The taking and typing of depositions and even minimal discovery under Rule 3.220 could require at least forty-five days during which defendant could be incarcerated awaiting discovery and a hearing.

(6) Richardson Inquiry Per Se Reversal. If discovery rules apply to violation of probation proceedings, then arguably the requirements of Kilpatrick v. State, 376 So.2d 386 (Fla.1979), Cumbie v. State, 345 So.2d 1061 (Fla.1977), and Richardson v. State, supra, also apply, requiring almost automatic reversal when the necessary Richardson inquiry is not made. This would have the effect of transforming an informal proceeding into a greatly more formal and structured matter.

(7) Other Courts. There is a dramatic absence of authority on the subject of discovery in violation of probation matters. We have located only one case on the subject, which, surprisingly, is directly on point. People v. DeWitt, supra, an opinion by the Supreme Court of the State of Illinois, addresses and answers in the negative the precise question of whether a defendant is entitled to discovery in violation of probation matters. The Illinois Supreme Court reasoned that due process does not guarantee pre-trial discovery to a criminal defendant even before trial, much less before a probation revocation hearing. The Illinois court also analyzed the defendant's assertion of entitlement to discovery pursuant to court rules of procedure existing in that State and concluded there was no such right. The Court stated as follows 397 N.E.2d at page 1386:

Defendant further contends that the language of Supreme Court Rule 411 (58 Ill.2d R. 411) grants a probationer the discovery provided in Supreme Court Rule 412 (65 Ill.2d R. 412). Rule 411 provides that the discovery rules "(s) hall be applied in all criminal cases wherein the accused is charged with an offense for which, upon conviction, he might be imprisoned in the penitentiary. They shall become applicable following indictment or information and shall not be operative prior to or in the course of any preliminary hearing." Although a determination that a probationer has violated the conditions of his probation may result in a sentence to the...