State v. Del Gaudio

• Decision Date: 31 January 1984
• Docket Number: 82-774,Nos. 82-770,s. 82-770
• Citation: 445 So.2d 605
• Parties: The STATE of Florida, Appellant, v. Richard DEL GAUDIO, a/k/a "Richie," and Howard Turnoff, Appellees.
• Court: Florida District Court of Appeals

Page 605

445 So.2d 605

The STATE of Florida, Appellant, v. Richard DEL GAUDIO, a/k/a "Richie," and Howard Turnoff, Appellees.

Nos. 82-770, 82-774.

District Court of Appeal of Florida,

Third District.

Jan. 31, 1984.

Rehearing Denied March 12, 1984.

Jim Smith, Atty. Gen., Janet Reno, State Atty. and Gertrude M. Novicki and Anthony C. Musto, Asst. State Attys., for appellant.

Louis Vernell, Sunny Isles, James G. Roth, Miami Beach, Kurt Marmar, Coral Gables, for appellees.

Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

The question presented by the State's appeal is whether dismissal of criminal charges is a permissible sanction under Florida Rule of Criminal Procedure 3.220 where the State has been grossly negligent and dilatory in furnishing the defendants with essential discovery material, which delay has not affected the defendants' ultimate ability to defend against the charges and has not, as yet, been found to have violated their right to a speedy trial guaranteed by Florida Rule of Criminal Procedure 3.191. We conclude that under the circumstances described, dismissal of the charges was not warranted. Accordingly, we reverse the order under review and remand the case to the trial court for further proceedings.

I.

In July 1981, the defendant DelGaudio was charged in two informations with conspiracy, gambling, extortion, criminal mischief and other activities; the defendant Turnoff was charged with extortion, criminal mischief and conspiracy to commit such offenses. ¹ The investigation leading up to the filing of these charges generated an extensive amount of documents, surveillance reports, tapes of intercepted conversations, pen register printouts, and the like. The defendants promptly requested this discovery material, and by October 1981 found it necessary to seek the aid of the court to obtain the production. After two court orders requiring, inter alia, the production of the pen register printouts did not succeed in bringing about the required production, the defendants moved to dismiss the charges against them. On December 30, 1981, satisfied by the State's representation that all discovery material had now been produced, the trial court denied the defendants' motions to dismiss.

Trial was to begin on January 4, 1982, the last day possible within the speedy trial rule. However, on December 30, 1981, after being advised that the case would have to be assigned to another trial judge in order for the trial to begin as scheduled, the defendants, to avoid this reassignment, agreed to extend the speedy trial time to May 1, 1982.

On February 3, 1982, the State's earlier representation that all discovery material had been furnished was belied when it turned over to the defense additional and arguably crucial surveillance reports. This turn-over precipitated the filing by the defendants of a motion to dismiss under Rule 3.220 based on the discovery violation, and a motion for discharge for violation of the speedy trial requirements under Rule 3.191. The trial court granted the motion to dismiss and specifically declined to rule on the motion for discharge.

II.

The authority to impose sanctions for a party's failure to comply with an applicable discovery rule or court order concerning discovery in a criminal case is found in Florida Rule of Criminal Procedure 3.220(j):

"(1) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order such party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed, or enter such other order as it deems just under the circumstances.

"(2) Willful violation by counsel of an applicable discovery rule, or an order issued pursuant thereto, may subject counsel to appropriate sanctions by the court."

Although the choice of sanction is within the discretion of the trial court, see Richardson v. State, 246 So.2d 771 (Fla.1971); McDonnough v. State, 402 So.2d 1233 (Fla. 5th DCA 1981); State v. Lowe, 398 So.2d 962 (Fla. 4th DCA 1981); accord, United States v. Bockius, 564 F.2d 1193 (5th Cir.1977) , ² the appellate court may determine whether this discretion has been abused, see Filgueiras v. State, 291 So.2d 21 (Fla. 3d DCA), cert. denied, 295 So.2d 113 (Fla.1974); accord, United States v. Bullock, 551 F.2d 1377 (5th Cir.1977).

Dismissal of an information or indictment is "an action of such magnitude that resort to such a sanction should only be had when no viable alternative exists." State v. Lowe, 398 So.2d at 963. See State v. King, 372 So.2d 1126 (Fla. 2d DCA 1979), cert. denied, 385 So.2d 758 (Fla.1980). Accord, United States v. Campagnuolo, 592 F.2d 852, 865 (5th Cir.1979) ("The supervisory powers of a district judge ... allow him to impose the extreme sanction of dismissal of an indictment with prejudice only in extraordinary situations."); United States v. Miranda, 526 F.2d 1319, 1324 n. 4 (2d Cir.1975). The obvious rationale for limiting the sanction of dismissal of criminal charges to only those cases where no other sanction can remedy the prejudice to the defendant is to insure that the public's interest in having persons accused of crimes brought to trial is not sacrificed in the name of punishing a prosecutor's misconduct. And, of course, where the prosecutor's failure to make discovery has not irreparably prejudiced the defendant, the sanction of dismissal punishes the public, not the prosecutor, and results in a windfall to the defendant. Because the rule authorizing the imposition of sanctions for discovery violation was "never intended to furnish a defendant with a procedural device to escape justice," Richardson v. State, 246 So.2d at 774, even when a defendant has been tried and convicted without having been furnished discovery material to which he was entitled, and the material is thereafter disclosed and made available to him, the relief granted is not dismissal of the charges, but a new trial, ³ Goldberg v. State, 351 So.2d 332 (Fla.1977); Waters v. State, 369 So.2d 979 (Fla. 3d DCA 1979), dismissed, 386 So.2d 642 (Fla.1980). Accord, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

III.

When a discovery violation is called to the trial court's attention by a defendant's timely objection or motion, Lucas v. State, 376 So.2d 1149 (Fla.1979), the court is required to conduct the hearing prescribed by Richardson v. State, 246 So.2d 771, in which hearing it must determine "what effect, if any, did [the violation] have upon the ability of the defendant to properly prepare for trial." ⁴ Richardson v. State, 246 So.2d at 775 (quoting Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970)). While it is the State's burden to prove the defendant has not been prejudiced, and "the circumstances establishing non-prejudice ... [must] affirmatively appear on the record," id.; but see Collier v. State, 353 So.2d 1219 (Fla. 3d DCA 1977) (placing the burden of proof on the defendant); Byrd v. State, 380 So.2d 457 (Fla. 1st DCA 1980), cert. denied, 398 So.2d 1352 (Fla.1981), approved for other reasons in Webb v. State, 398 So.2d 820 (Fla.1981) (same), if the defendant is shown not to have been prejudiced by the violation, no sanction may be imposed against the State. Richardson v. State, 246 So.2d at 774. Cf. Lucas v. State, 376 So.2d at 1151. Thus,

"[t]he key question in a situation in which a discovery violation is alleged is whether or not the defendant was significantly prejudiced by the State's failure to produce the requested evidence.... If the defense were prejudiced, Florida law would require reversal whether or not the State had acted in good faith.... But where prejudice is not shown by the noncompliance, reversal is not warranted."

Jones v. State, 360 So.2d 1293, 1296-97 (Fla. 3d DCA 1978) (citation omitted).

See also Miller v. State, 435 So.2d 258 (Fla. 3d DCA 1983); Collier v. State, 353 So.2d 1219. Accord, United States v. Ariza-Ibarra, 651 F.2d 2 (1st Cir.), cert. denied, 454 U.S. 895, 102 S.Ct. 392, 70 L.Ed.2d 209 (1981); United States v. Bullock, 551 F.2d 1377; United States v. Acosta, 526 F.2d 670 (5th Cir.), cert. denied, 426 U.S. 920, 96 S.Ct. 2625, 49 L.Ed.2d 373 (1976); United States v. Johnson, 390 F.Supp. 1049 (E.D.N.Y.), aff'd, 525 F.2d 999 (2d Cir.1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1127, 47 L.Ed.2d 327 (1976). ⁵

The existence of prejudice, then, is the sine qua non for relief from a discovery violation. Assuming, arguendo, that a defendant who has triggered the State's obligation to furnish information and material within the State's possession and control suffers some prejudice to his ability to prepare for trial for as long as that disclosure is not forthcoming, such prejudice is completely removed when the defendant is provided with the discovery information and material and is afforded an adequate opportunity to make use of the information and material in the preparation of his defense. When the State furnishes the discovery sufficiently in advance of the scheduled trial date to enable the defendant to utilize the discovery in the preparation of his defense, there is no longer any prejudice from the previous delay. If the discovery material and information comes too late to permit the trial to proceed as scheduled, the prejudice is extinguished when the trial is continued. ⁶ See State v. Banks, 418 So.2d 1059 (Fla. 2d DCA), rev. denied, 424 So.2d 760 (Fla.1982) (reversing dismissal; continuance appropriate sanction where despite State's failure to notify defendant of certain eyewitnesses to alleged crime, defendant learned of such information some twelve days before the expiration of the speedy trial period); State v. Lowe, 398 So.2d 962 (reversing...