Schopp v. State, 93-1901

• Decision Date: 06 July 1994
• Docket Number: No. 93-1901,93-1901
• Citation: 641 So.2d 141
• Parties: 19 Fla. L. Weekly D1445 Eric SCHOPP, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 141

641 So.2d 141

19 Fla. L. Weekly D1445

Eric SCHOPP, Appellant, v. STATE of Florida, Appellee.

No. 93-1901.

District Court of Appeal of Florida Fourth District.

July 6, 1994.

Rehearing and Stay Denied

Aug. 25, 1994.

Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Patricia Ann Ash, Asst. Atty. Gen., West Palm Beach, for appellee.

ANSTEAD, Judge.

Appellant, Eric Schopp, was charged with armed burglary and grand theft. Upon trial, he was convicted of the lesser offenses of burglary and petit theft. We reverse and remand for a new trial as mandated by the holdings in Richardson v. State, 246 So.2d 771 (Fla.1971) and Smith v. State, 500 So.2d 125 (Fla.1986).

Under Richardson and Smith we must reverse if we determine that the trial court permitted a previously undisclosed prosecution witness to testify without conducting an inquiry into the circumstances and the possible prejudice to the defendant. We are not permitted to determine if the erroneous omission of the inquiry and the admission of the evidence constituted harmless error.

With some trepidation, absolute fealty to the doctrine of precedent, and genuine deference and respect for the substantial policy concerns underlying the per se rule affirmed in Smith, we urge the Florida Supreme Court to review this issue as a continuing issue of great public importance. We do so for two reasons, one case specific, and the other involving a change and clarification of the law of harmless error.

In this case, we have concluded that the trial court failed to conduct a proper inquiry after the state called a witness not previously disclosed to the defense. The court ruled that no inquiry was necessary and none would be conducted because the defendant had exercised his right to a speedy trial. This was error.

However, the witness presented testimony that was not only known to the defendant, cumulative to other testimony, but concerned facts openly admitted by the defendant prior to, and at trial in testimony to the jury. In fact, defense counsel, in his opening statement to the jury, admitted that the defendant committed the offenses for which the defendant was ultimately convicted:

MR. FOSTER: Yes Judge. Eric is a young man who grew up in Port St. Lucie, he went to Port St. Lucie High, he has a father Wayne and a mother Sharon that lives there in Port St. Lucie. Now December 2, 1992, Eric did something very stupid. He entered into someone's house, the house was not his. When he entered into the house, he removed a number of items. Among those items was a gun, the gun was in a case. You'll learn that after leaving the house, removing the items and leaving the house, Eric left the area. He was shortly apprehended by Detective Bennett and other officers of the Port St. Lucie Police Department. Almost immediately Eric was sorry, he confessed. There is a taped confession. You are going to hear the taped confession. He also wrote a letter of apology to the victims, Mrs. Kaven--Mr. and Mrs. Kaven, where he over and over again apologized for committing the crime...