Rembert v. State, 73-8

• Decision Date: 02 October 1973
• Docket Number: No. 73-8,73-8
• Citation: 284 So.2d 428
• Parties: Willie REMBERT, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 428

284 So.2d 428

Willie REMBERT, Appellant, v. The STATE of Florida, Appellee.

No. 73-8.

District Court of Appeal of Florida, Third District.

Oct. 2, 1973.

Rehearing Denied Nov. 8, 1973.

Phillip A. Hubbart, Public Defender, Mark King Leban, Asst. Public Defender, and Kurt Marmar (Legal Intern), for appellant.

Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.

Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.

HENDRY, Judge.

Appellant, defendant in the trial court, seeks review of a conviction and sentence of forty years for robbery following a jury trial.

Defendant was arrested and charged by information on October 17, 1972 with robbery of $75,000.00 cash from Wells Fargo guards who were making a delivery of the money to a Sears warehouse. On October 10, one week prior to the filing of the information, the defendant filed a demand for a speedy trial. On October 18, the court granted defendant's motion for pretrial discovery, which invoked the reciprocal discovery provision of local criminal court of record Rule 4. The court also granted defendant's motion to take pretrial depositions. The state did not comply, and on November 16 the defendant moved for an order to compel the state to provide reciprocal discovery pursuant to the rule.

On November 21, the defense motion was granted, and the state was given 24 hours to comply. The next day, defense counsel received by mail two witness lists containing 36 names of prospective witnesses for the state. The following four days, November 23 through November 26 were official Thanksgiving holidays. At trial on November 27, the defendant moved to exclude the testimony of the state's witnesses, and alternatively moved for a continuance, to strike the defendant's speedy trial demand or to withdraw it, and to permit counsel to withdraw. The defendant argued that inasmuch as the state had failed to provide a list of 36 witnesses until the business day next preceding trial, there was insufficient time to take depositions. The defendant also contended that if he were forced to proceed to trial without a continuance, he would be deprived of a competent defense and due process of law. The court denied the motions because of the speedy trial demand previously made by the defendant. The court also refused to permit defense counsel to withdraw the speedy trial demand upon objections of the state and refused a continuance or to permit counsel to withdraw.

We have considered the record, briefs and arguments of counsel and have concluded that the court's failure to grant a continuance, or, in the alternative, to determine whether the state's non-compliance with Florida R.Cr.P. 3.220, 33 F.S.A., resulted in harm or prejudice to the defendant constitutes reversible error.

Our Supreme Court has recently reconsidered the question of the state's failure to comply with the discovery requirements of Rule 3.220. The Supreme Court again said that while a trial judge has discretion to exclude witnesses or to grant continuances due to the state's non-compliance with the rule, the trial judge must first determine whether or not the failure of the state to comply with the rule would in any way be harmful or prejudicial to the defendant. Bradford v. State, Fla.1973, 278 So.2d 624.

In Bradford, Justice Dekle's opinion for the court placed firm reliance upon an earlier Supreme Court case, Richardson v. State, Fla.1971, 246 So.2d 771, 775 in which the court stated that the discretion of the trial judge in granting a continuance may be properly exercised:

'. . . Only after the court has made an adequate inquiry into all of the surrounding circumstances. Without intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state's violation was inadvertent or wilful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.'

The court added that in those cases where the court determines that the state's non-compliance with Rule 3.220 has not prejudiced the ability of the defendant to properly prepare for trial, the circumstances establishing non-prejudice must affirmatively appear in the record.

In the case sub judice the trial judge relied upon the defendant's demand for a speedy trial as grounds for denying a continuance and refused to permit the defendant to withdraw his demand. This clearly was error. The Supreme Court has held that a demand for speedy trial which is filed prior to the information is a nullity. State ex rel. Hanks v. Goodman (Fla.1971),253 So.2d 129; see also, State ex rel. Novak v. Sepe (Fla.App.1971), 253 So.2d 454; State ex rel. Dennis v. Morphonios (Fla.App.1971), 252 So.2d 845.

The state maintains that no showing of prejudice was made in fact before the trial judge because the state informed the court that defense counsel was present at a preliminary hearing, when three of the main prosecution witnesses testified, and at four bond hearings.

However, where a witness list containing 36 witnesses was provided defense counsel on the business day before trial, we do not think that the fact defense counsel knew of three, affirmatively establishes a lack of prejudice to the defendant. See Ramirez v. State (Fla.App.1970), 241 So.2d 744; Carnivale v. State (Fla.App.1973), 271 So.2d 793.

The state also argues that the defendant waived his objection to the belated witness list because he invoked local criminal court Rule 4 at his arraignment. Local Rule 4 in effect at the time of the defendant's trial ¹ provided that if either the state or defense failed to comply with the rule's discovery provisions, the opposing party must within five (5) days from the last day of required compliance make a motion with the court to compel compliance or 'he shall be deemed to have waived his objection to the failure to make discovery by the non-complying party.'

The state points out that Rule 4 once invoked gave the state five (5) days from the date of defendant's arraignment (October 18) to comply, and the defendant had another five days to file a motion to compel. However, the defendant did not file such a motion until November 16.

We have concluded that the defendant did not waive his right to discovery of the state's witnesses. There was no such waiver provision in R.Cr.P. 3.220(e) in effect when the defendant's trial took place, and in this respect local Rule 4 is in apparent conflict.

The state has cited to us, Ramirez v. State, Supra, where the Fourth District Court of Appeal, by obiter dictum, stated: ²

'A shrewd defense counsel, aware that no response whatever had been made to his offer to exchange witnesses, would simply wait until the jury had been impanelled and sworn so that jeopardy attached to his client, and would then effectively exclude the state's entire case.'

Significantly, in Ramirez, on the second day of his trial, the defendant made an oral motion to exclude the testimony of the state's third witness due to the state's failure to furnish a witness list. The trial court denied the motion, and the Fourth District Court reversed and remanded for a new trial. We agree with the court's assessment that Rule 3.220 was 'an enlightened step in the continuing efforts to improve our system of criminal justice.'

In this light, we do not feel that the defendant waived his right to a list of 36 witnesses where there is no affirmative showing that the defendant would not be prejudiced in his right to a fair trial and to due process. See Braswell v. Wainwright, 463 F.2d 1148, 1155 (5th Cir. 1972).

Defense counsel's failure to file a motion to compel unt...