State v. Counce, s. 79-2227
| Decision Date | 28 January 1981 |
| Docket Number | 80-282,Nos. 79-2227,s. 79-2227 |
| Citation | 392 So.2d 1029 |
| Parties | STATE of Florida, Appellant, v. David Michael COUNCE, Appellee. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
Richard L. Jorandby, Public Defender, Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellee.
These are consolidated appeals by the State from (1) an order dismissing one count (attempted arson) of a three-count Information filed against Counce (Case No. 79-2227) and (2) an order discharging Counce from custody as to Counts II (extortion) and III (throwing a deadly missile into a building) (Case No. 80-282).
On February 13, 1979, a City of Hallandale police officer investigated a case regarding an alleged arson. During the course of his investigation the officer retrieved (1) a quart-sized beer bottle containing a liquid that smelled and tasted like gasoline and (2) a charred piece of brown paper. He took the foregoing material to a squadroom at the police station. Because an odor emanated from the squadroom, the station commander directed the officer to get rid of the material the officer had retrieved. The officer complied with his superior's order and got rid of the bottle, its contents, and the piece of brown paper. All this was done on February 13, 1979, before any analysis of the bottle, the liquid contents of the bottle, or the piece of brown paper could be made.
On February 16, 1979, Counce was taken into custody and charged with attempted arson and extortion. The third charge was added later. All the offenses charged were allegedly committed on February 13, 1979.
On March 23, 1979, the public defender filed a form Demand For Discovery, pursuant to Florida Rule of Criminal Procedure 3.220(a). The State responded to the Demand on April 11, 1979, by supplying the defense with, among other things, the identities and addresses of eleven persons who the prosecutor knew had information relevant to the offenses charged. Six of the eleven persons named were Hallandale police officers; two others were the purported extortion victims. On some date between April 11, 1979, and May 25, 1979, the public defender took the depositions of the purported extortion victims.
On May 29, 1979, the Honorable Robert Tyson, Jr., the judge then presiding over the cause, called the cause for trial. The prosecutor announced the State was ready. The public defender informed the court the defense was not ready on the extortion count because the State had failed to comply with a court order "to more clearly indicate what statements, if any, were made by Mr. Counce," and to give the defense the names of the persons in whose presence a statement had been made. A discussion among counsel and Judge Tyson disclosed that the public defender had deposed the purported victims and had learned that there were policemen present when one purported victim received an allegedly extortionate phone call from Counce; however, neither purported victim knew which policemen were present or whether any policeman had listened in on the conversation. In addition, the prosecutor represented that he did not know whether any policeman had listened in on the telephone conversation. However, the public defender still wanted to know the identity of any policeman who overheard the conversation. He asked Judge Tyson for a continuance and asked that the continuance be charged to the State. Judge Tyson granted the continuance, but he charged it to the defense.
In July 1979 the Honorable Joseph E. Price, Jr., succeeded Judge Tyson as the presiding judge in this cause.
On October 8, 1979, after a hearing on a defense motion, Judge Price entered an order dismissing Count I of the Information on the ground that the destruction of the beer bottle, the contents of the bottle, and the brown piece of paper had denied Counce due process of law. The Hallandale police officers involved in the destruction of the material they obtained on February 13, 1979, were and are agents of the State insofar as their actions relative to that material is concerned. The destruction of the material was thus an action of the State; that action impaired Counce's right of access to relevant and material evidence necessary to Counce's preparation of his defense on Count I. The circuit court properly concluded that this impairment of Counce's right to prepare his defense violated Counce's right to due process. See Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975). We conclude that under the circumstances of this case, dismissal of Count I was proper. We hold that the order of October 8, 1979, was correct and affirm it.
We turn now to the order discharging Counce from custody as to Counts II and III.
On October 16, 1979, the public defender filed a motion for discharge on the grounds ...
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James v. State
...This is especially true where a defendant and the state have the same access to the sought-after information. See State v. Counce, 392 So.2d 1029 (Fla. 4th DCA 1981). In the instant case the unidentified photograph belonged to a juvenile with sealed records, which might have contained the i......
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Lewis v. State, 85-1761
...257 So.2d 898, 899 (Fla.1972) (quoting with approval State v. Gillespie, 227 So.2d 550, 553 (Fla. 2d DCA 1969)); see State v. Counce, 392 So.2d 1029 (Fla. 4th DCA 1981); Floyd v. State, 361 So.2d 802 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1366 (Fla.1979). Lewis may not lament his own d......
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Patterson v. State
...to introduce essentially irrefutable testimony of the most damaging nature.” Lancaster, 457 So.2d at 507 (citing State v. Counce, 392 So.2d 1029 (Fla. 4th DCA 1981) ; Johnson v. State, 249 So.2d 470 (Fla. 3d DCA 1971) ); see also Lancaster, 457 So.2d at 507 (“It would be fundamentally unfai......
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Finney v. State, s. 84-2529
...retained by the state and no discovery which was exculpatory in nature. See Perry v. State, 395 So.2d 170 (Fla.1981); State v. Counce, 392 So.2d 1029 (Fla. 4th DCA 1981); Thomas v. State, 374 So.2d 508 (Fla.1979); Clements v. State, 340 So.2d 1182 (Fla. 4th DCA 1976); Comer v. State, 318 So......