Pender v. State, s. 93-1832
| Decision Date | 02 December 1994 |
| Docket Number | 93-1942,Nos. 93-1832,s. 93-1832 |
| Citation | 647 So.2d 957 |
| Parties | 19 Fla. L. Weekly D2534 Kevin Walter PENDER, and Clarence Pender, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and James T. Cook and Noel A. Pelella, Asst. Public Defenders, Daytona Beach, for appellants.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Mark S. Dunn, Asst. Atty. Gen., Daytona Beach, for appellee.
Clarence Pender and Kevin Walter Pender appeal their convictions for sexual battery on a child less than twelve years of age. 1 Clarence Pender is the victim's father, and Kevin Pender is the victim's uncle.
Dr. Tokarski, an examining pediatrician with the Child Protection Team, 2 testified at trial that she examined the victim on June 11, 1992. According to Dr. Tokarski, although the child's hymen was intact, she had a discharge at the opening of the vagina, scarring and a cyst. Dr. Tokarski opined that these "abnormalities" had been caused by "blunt trauma" to [the child's] "outer genitals," but was unable to date the trauma beyond stating that it was more than five to seven days old. Dr. Tokarski also stated that she did a culture which showed that the child had chlamydia.
On cross-examination by the father's counsel, Dr. Tokarski was asked whether she had examined the child with a colposcope, an instrument which has the ability to take a photograph. She acknowledged that she had taken a colposcopic photograph of the child, and had "discussed it" with the prosecutor, although she had not given the photograph to him. At this point, both defense counsel asked for a Richardson hearing, claiming a discovery violation based on the state's failure to produce the photograph. 3 See Fla.R.Crim.P. 3.220(b)(1)(J) (1993). The trial court refused. This was per se reversible error. James v. State, 639 So.2d 688 (Fla. 2d DCA 1994); Smith v. State, 500 So.2d 125 (Fla.1986); Richardson v. State, 246 So.2d 771 (Fla.1971). It is not subject to a harmless error analysis. Schopp v. State, 641 So.2d 141 (Fla. 4th DCA 1994), rev. granted, 649 So.2d 235 (Fla.1994).
REVERSED and REMANDED.
DIAMANTIS, J., concurs specially in result, with opinion, in which PETERSON, J., concurs.
I concur that the trial court committed reversible error in not conducting a Richardson 1 hearing regarding the state's failure to disclose to the defense the existence of the colposcopic photograph taken by Dr. Tokarski, a member of the Child Protection Team. See Lee v. State, 538 So.2d 63, 65 (Fla. 2d DCA 1989), and cases cited therein.
1 The defendants, who are brothers, were tried together below, and their cases have been consolidated for the purposes of appeal.
2 A multidisciplinary team funded by state grants to investigate...
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Pender v. State
...125 (Fla.1986), originally found the trial court's failure to conduct a Richardson hearing per se reversible. Pender v. State, 647 So.2d 957 (Fla. 5th DCA 1994) (Pender I ). This Court quashed the district court's decision and remanded for reconsideration in light of State v. Schopp, 653 So......
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State v. Pender
...Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for Respondent. PER CURIAM. We have for review Pender v. State, 647 So.2d 957 (Fla. 5th DCA 1994), which expressly and directly conflicts with the opinion in State v. Schopp, 653 So.2d 1016 (Fla.1995). We have jurisdiction.......
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Pender v. State, s. 93-1832
...of what it depicted under the facts of this case. AFFIRMED. PETERSON, C.J., and DAUKSCH and GRIFFIN, JJ., concur. 1 Pender v. State, 647 So.2d 957 (Fla. 5th DCA 1994), review granted, 654 So.2d 920 (Fla.1995).2 State v. Pender, 661 So.2d 304 ...
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