Ludwick v. State, s. 75--1525 and 75--1526
| Decision Date | 30 July 1976 |
| Docket Number | Nos. 75--1525 and 75--1526,s. 75--1525 and 75--1526 |
| Citation | 336 So.2d 701 |
| Parties | Gary LUDWICK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bryan C. Hugo of Hugo & White, Orlando, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant in Case No. 75--1525 was tried and found guilty of both possession and delivery of cannabis. In Case No. 75--1526, he withdrew his previous plea of not guilty and entered a plea of nolo contendere to the offense of conspiracy to commit a felony, specifically reserving his right to appeal. The cases have been consolidated for the purposes of this appeal.
The only issue presented is whether the trial court erred in denying appellant's motions to dismiss for failure to make discovery. Testimony at a pretrial hearing established that the alleged offenses occurred at various times during December 1974. Throughout that month appellant had contacts with Officers Wingfield and Bass, undercover agents of the Orlando Police Department; the contacts included five telephone conversations involving narcotics transactions, which were recorded by the police. The tape cassettes were kept in a desk drawer in the Municipal Justice Building. The tapes were lost in the process of moving. There were differing opinions among police personnel who testified at the pre-trial hearing as to whether the tapes were merely for the use of law enforcement officers or were to have been preserved as evidence. There does not appear to have been a plan to preserve the subject tapes as evidence. Appellant made demand for production of the tapes under Fla.R.Crim.P. 3.220. Prior to trial appellant's motions to dismiss were denied without prejudice.
Appellant has not provided this court with a transcript of the trial proceedings and we are unable to determine from the record that the loss of tapes resulted in prejudice to the defendant. The trial judge's orders denying the motions to dismiss were without prejudice so the appellant upon a proper showing at the time of trial could have renewed his motions. This distinguishes the present case from Farrell v. State, 317 So.2d 142 (Fla.1st DCA 1975), in which the appellate court found unintentional destruction of tape recordings of drug transactions by the State to have violated defendants' right to due process. The reversal in Farrell...
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Budman v. State, 77-1210
...DCA, opinion filed April 18, 1978); cf. Mitchell v. State, 358 So.2d 238 (Fla. 2d DCA 1978) (finding of materiality); Ludwick v. State, 336 So.2d 701 (Fla. 4th DCA 1976) (inadequate record to demonstrate prejudice); and Hernandez v. State, 273 So.2d 130 (Fla. 1st DCA 1973) (no showing of fa......
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State v. Sobel
...So.2d 747 (Fla. 3rd DCA 1977), which directly conflicts with State v. Smith, 342 So.2d 1094 (Fla. 2d DCA 1977), and Ludwick v. State, 336 So.2d 701 (Fla. 4th DCA 1976). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida The defendant, Robert Sobel, on a two-count informati......
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Ivester v. State
...or harm to his case. Holman v. State, 347 So.2d 832, 834 (Fla. 3rd DCA 1977) cert. denied, 354 So.2d 981 (Fla.1978); Ludwick v. State, 336 So.2d 701, 702 (Fla. 4th DCA 1976) reh. Because it is possible that prejudice or harm might have occurred, we relinquish jurisdiction to the trial court......
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Johnson v. State, AF-62
...Ivester v. State, 398 So.2d 926, 931 (Fla. 1st DCA 1981); Holman v. State, 347 So.2d 832, 834 (Fla. 3rd DCA 1977); Ludwick v. State, 336 So.2d 701, 702 (Fla. 4th DCA 1976). We affirm appellant's remaining points without discussion and find that the evidence is clearly sufficient to sustain ......