State v. Manderville, 86-440
| Decision Date | 15 September 1987 |
| Docket Number | No. 86-440,86-440 |
| Citation | 512 So.2d 326,12 Fla. L. Weekly 2247 |
| Parties | 12 Fla. L. Weekly 2247 The STATE of Florida, Appellant, v. Bryan D. MANDERVILLE and Robert Monticelli, Appellees. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellant.
Jack M. Denaro, Miami, for appellee Manderville.
Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellee Monticelli.
Before HUBBART, BASKIN and FERGUSON, JJ.
For the failure of the state to comply with an order to produce a confidential informant, an information accusing two defendants, Manderville and Monticelli, of trafficking in cocaine was dismissed. The state appeals.
Manderville contended that the confidential informant privilege, which insulates a confidential informant from disclosure, is inapplicable because the state refused to agree that the confidential informant would not become a witness under any circumstances. The state responded that, if the informant were to become a witness, it would amend its reply to the discovery demand and Manderville would be given the opportunity to depose the informant. Further the state argued, since there was no need or present plan to call the informant at trial, the confidential privilege should apply.
The present controversy stems directly from the state's equivocation as to whether it intended to call the confidential informant as a witness. The state contends that it had a right to preserve an option on use of the confidential informant at trial. We assume, for the sake of reaching the dispositive question, that the court's order to produce the confidential informant was a proper one to force a timely election by the state. Deciding only whether dismissal of the case was an appropriate sanction, we hold that dismissal was not warranted.
Dismissal of a criminal case for violation of court orders is a drastic sanction which should be employed only as a last resort. See State v. Rodriguez, 483 So.2d 807 (Fla. 3d DCA), review denied, 492 So.2d 1334 (Fla.1986); State v. Del Gaudio, 445 So.2d 605 (Fla. 3d DCA), review denied, 453 So.2d 45 (Fla.1984). The appropriate sanction for the state's failure to obey the court's order, and one which would have satisfactorily protected the court's integrity, would have been to exclude the informant from giving any testimony in the case.
Florida Rule of Criminal Procedure 3.220(c)(2), the controlling rule, provides that disclosure of a confidential informant can be compelled for discovery purposes only if that informant "is to be produced at a hearing or trial." There is nothing in the spirit or letter of rule 3.220(c)(2) which requires the state to decide irrevocably, upon the commencement of a prosecution, whether it will call a confidential informant as a witness. This observation is of course subject to the rule of prejudice. If the state decides late in the preparatory stage of trial that circumstances are such that there is a need to call the informant as a witness it must make a clear showing that the defendant will not be prejudiced or embarrassed in the preparation of a defense. We interpret the trial court's order compelling disclosure of the informant as a determination that the defendant would suffer prejudice if the informant were not produced. 1
State v. Glosson, 462 So.2d 1082 (Fla.1985), relied upon by the...
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Garcia v. State
...a hearing or trial, or a failure to disclose his identity will infringe the constitutional rights of the accused. In State v. Manderville, 512 So.2d 326 (Fla. 3d DCA 1987), the court found the rule provides that "disclosure of a confidential informant can be compelled for discovery purposes......
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Scott v. State, 87-2112
...He took no part in the discussions preceding or during the drug transaction, and was not called as a witness. See State v. Manderville, 512 So.2d 326 (Fla. 3d DCA 1987) (knowledge of informant not necessary where informant did not witness or participate in the trafficking offense). Compare ......
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State v. Padron
...would warrant the severe sanction of dismissal of the charges. I agree that on the present state of the record, as in State v. Manderville, 512 So.2d 326 (Fla. 3d DCA 1987), dismissal of the case was ...