Lavigne v. State, EE-365
| Decision Date | 01 June 1977 |
| Docket Number | No. EE-365,EE-365 |
| Citation | 349 So.2d 178 |
| Parties | Gary William LAVIGNE, Appellant (Defendant), v. STATE of Florida, Appellee (State). |
| Court | Florida District Court of Appeals |
Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, Tallahassee, for appellant.
Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
A jury convicted Lavigne of robbery with a firearm. He appeals.
The issue which is determinative of this appeal is whether the trial court erred when it allowed the testimony of a police officer concerning an oral statement made to him by Lavigne which was not disclosed by the State in response to Lavigne's demand for discovery.
As provided by Fla.R.Crim.P. 3.220(a)(1)(iii), Lavigne made written demand upon the State to disclose the substance of any oral statements made by him and known by the State, together with the name and address of each witness to the statement. The State responded, "Statements made to Greg Denton on day in question". Later the State added to its response "oral admissions made to James Larry Andrews". Although the State knew that Lavigne made an oral statement to police officer Sciadini, it did not include this information in its responses to the demand for discovery. In response to Lavigne's notice that he intended to claim an alibi, the State furnished the name of Sciadini as a rebuttal witness. Several days before the trial, the State informed Lavigne that Sciadini would be called as a witness and made him available to Lavigne for interview or deposition. Lavigne neither interviewed him nor took his deposition. At the trial, the State used Officer Sciadini as a rebuttal witness and he was permitted to testify concerning an oral statement made to him by Lavigne. Lavigne objected on the ground that the State failed to comply with his demand for discovery and that the testimony elicited came as a surprise to him. Without making a full inquiry into the circumstances surrounding the State's failure to comply with Lavigne's demand for discovery, as required by Richardson v. State, 246 So.2d 771 (Fla.1971), the trial court overruled the objection.
Where the State violates a Rule of Criminal Procedure, the trial court must make a full inquiry into all the circumstances surrounding the breach to determine whether the defendant is prejudiced by the State's noncompliance. The State has the burden of showing to the trial court that there is no prejudice to the defendant. Failure of the trial court to make a full inquiry requires reversal of a conviction. Richardson v. State, supra; Cumbie v. State, 345 So.2d 1061 (Fla.1977), opinion filed 17 March 1977.
The State did not furnish Lavigne with the substance of the oral statement made by him nor did it inform him that Officer Sciadini was a witness to the statement. This was a violation of Fla.R.Crim.P. 3.220(a)(1)(iii). Nevertheless, the trial court failed to make a full inquiry into all the circumstances surrounding the breach and failed to determine whether Lavigne was prejudiced.
The State argues that it informed Lavigne that Sciadini would be a witness at the trial, that the State made Sciadini available for interview or deposition, that Lavigne did not move for a continuance, that Lavigne does not claim prejudice and that the trial court's inquiry was sufficient. None of these arguments has merit. Lavigne had no reason to interview or take Sciadini's deposition because he had not been informed by the State as required by a rule of criminal procedure that Sciadini was a witness to an oral statement made by him. There is no requirement that Lavigne ask for a continuance because the State violated a rule of criminal procedure. The law does not require that a defendant claim prejudice; the law requires that the State prove there is no prejudice to the defendant. The trial court did not make the inquiry required by Richardson v. State, supra. This was error.
Because we are required to reverse the judgment of conviction and remand for a new trial, it is unnecessary that we discuss the other points raised by Lavigne.
Reversed and remanded for a new trial.
The law succinctly announced by my brother Mills in the foregoing opinion authored by him is to me shocking, but I concede that it appears to be in conformity with the latest pronouncement by the Supreme Court of Florida in Cumbie v. State, 345 So.2d 1061 (Fla.1977), Case No. 49,134 not yet reported. The effect of the opinion is to explicitly declare the harmless error statute (F.S. 924.33) and doctrine (Urga v. State, 155 So.2d 719 (Fla. 2nd DCA 1963) inapplicable, as a matter of law, to situations wherein a trial judge permits evidence from a witness whose name was not revealed by the State to a defendant who has made demand for discovery in accordance with the Rules of Criminal Procedure, without the trial court conducting an inquiry into the question of prejudice, whether or not the defendant, on appeal, claims to have been prejudiced.
It is noted that in the foregoing opinion Judge Mills unequivocally asserts:
In the foregoing opinion Judge Mills cites as authority, inter alia, Richardson v. State, 246 So.2d 771 (Fla.1971), as did the Supreme Court in Cumbie v. State, supra. However, in Richardson v. State, the Supreme Court said:
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