State v. Schopp, 84061

• Decision Date: 23 March 1995
• Docket Number: No. 84061,84061
• Parties: 20 Fla. L. Weekly S136 STATE of Florida, Petitioner, v. Eric SCHOPP, Respondent.
• Court: Florida Supreme Court

Page 1016

653 So.2d 1016

20 Fla. L. Weekly S136

STATE of Florida, Petitioner, v. Eric SCHOPP, Respondent.

No. 84061.

Supreme Court of Florida.

March 23, 1995.

Rehearing Denied May 1, 1995.

Robert A. Butterworth, Atty. Gen., Joan Fowler, Sr. Asst. Atty. Gen. and Patricia Ann Ash, Asst. Atty. Gen., West Palm Beach, for petitioner.

Richard L. Jorandby, Public Defender and Anthony Calvello, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.

KOGAN, Justice.

We have for review Schopp v. State, 641 So.2d 141, (Fla. 4th DCA 1994), which presents

                the question of whether a trial court's failure to conduct adequate inquiry into alleged discovery violations under this Court's decision in Richardson v. State, 246 So.2d 771 (Fla.1971), should continue to be treated as per se reversible error. 1  We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution
                

NOTICE OF VOLUNTARY DISMISSAL

Before we address the certified question, we must address Schopp's contention that this Court lacks jurisdiction because he filed a notice of voluntary dismissal in the district court prior to the final disposition of his appeal. The decision under review was issued on July 6, 1994. Schopp filed a timely motion for rehearing and the State filed a timely petition for review in this Court. While the motion for rehearing was pending in the district court, Schopp filed a notice of voluntary dismissal pursuant to Florida Rule of Appellate Procedure 9.350(b). The State filed a motion to strike the notice. On August 1, 1994, Schopp sought a writ of mandamus from this Court compelling the district court to dismiss the appeal. On August 15, the district court denied the motion for rehearing and granted the State's motion to strike the notice. Then, on September 1, Schopp filed a motion to dismiss the State's petition for review alleging that this Court lacks subject matter jurisdiction because he filed his notice of voluntary dismissal before the district court's decision became final. This Court denied both the petition for writ of mandamus and the motion to dismiss.

Florida Rule of Appellate Procedure 9.350(b) provides in pertinent part:

A proceeding of an appellant or petitioner may be dismissed before a decision on the merits by filing a notice of dismissal with the clerk of the court....

Schopp argues that since his notice of voluntary dismissal was filed before the district court's decision became final, his appeal had to be dismissed as a matter of right; and therefore there is no decision for this Court to review.

We agree with Schopp that his notice of dismissal was timely filed under rule 9.350(b) because there was no "decision on the merits" until the district court disposed of his motion for rehearing. See Fla.R.App.P. 9.020(g)(1) (a decision is not rendered for appellate purposes until disposition of motion for rehearing); Cf. Haverley v. Clann, 196 So.2d 38 (Fla. 2d DCA 1967) (notice of dismissal due to settlement would have been timely filed under rule providing for the filing of such notice "before a decision on the merits" if notice had been filed prior to resolution of motion for rehearing). However, the fact that the notice was timely filed does not end our analysis. Even where a notice of voluntary dismissal is timely filed, a reviewing court has discretion to retain jurisdiction and proceed with the appeal. Cf. Ervin v. Capital Weekly Post, 97 So.2d 464 (Fla.1957) (this Court retained jurisdiction to consider issue of public importance where appellees sought dismissal prior to initial decision); Phibro Resources Corp. v. Department of Environmental Regulation, 579 So.2d 118 (Fla. 1st DCA) (district court retained jurisdiction where case had been settled while motions for rehearing were pending and notices of voluntary dismissal had been filed prior to decision on rehearing), cause dismissed, 592 So.2d 679 (Fla.1991). This is particularly true where, as here, the case presents a question of public importance and substantial judicial labor has been expended as evidenced by the issuance of an initial opinion. Accordingly, it was within the district court's discretion to retain jurisdiction and refuse to withdraw its opinion certifying the question of public importance to this Court.

CERTIFIED QUESTION

Next, we turn to the certified question which arises in the following context. Eric Schopp was charged with armed burglary and grand theft, but was convicted of the lesser included offenses of burglary and petit theft. At trial, the State sought to call the responding officer as a witness. Defense counsel objected because the officer was not on the State's original witness list. The prosecutor acknowledged that the officer inadvertently had been omitted from the original list but stated that the officer's name had been added to an amended list given defense counsel shortly before trial. The prosecutor told the court that the officer was going to testify to information contained in a report that had been supplied to the defense during pretrial discovery. The trial court overruled the objection and refused to continue the inquiry into the violation in light of the fact that Schopp had filed a demand for speedy trial. The court concluded that under the circumstances a Richardson hearing was not required; thus, no inquiry was made into whether the defense was prejudiced by the violation and no consideration was given to sanctions that might have averted any prejudice.

On appeal, the district court felt compelled to reverse by this Court's decision in Smith v. State, 500 So.2d 125 (Fla.1986), which held the failure to conduct a Richardson hearing per se reversible error. The district court reversed despite the fact that it was "absolutely convinced that the admission of the testimony of the undisclosed witness and the failure to conduct a Richardson inquiry were harmless," under the harmless error analysis set out in State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Schopp v. State, 641 So.2d at 142.

The district court considered the following facts in finding the error harmless: 1) the undisclosed witness presented testimony that was known to the defendant, was cumulative to other testimony, and concerned facts openly admitted by the defendant; 2) defense counsel admitted during opening statement that Schopp committed the offenses of which he was ultimately convicted; and 3) Schopp was acquitted of the charged offenses and thus "won" his case. 641 So.2d at 142. Pointing to our discussion of the harmless error analysis in DiGuilio, the district court suggests that we reconsider our decision in Smith. Id.

In Smith, we were asked to consider whether a new trial is required when a trial court's failure to conduct a Richardson hearing is found to be harmless by the reviewing court. We reiterated that the failure to make a Richardson inquiry must be considered per se reversible error because a reviewing court is in no position to determine from a cold record whether a discovery violation is harmless. See Wilcox v. State, 367 So.2d 1020, 1023 (Fla.1979); Cumbie v. State, 345 So.2d 1061, 1062 (Fla.1977). We reasoned that an appellate determination as to whether a Richardson violation is harmless is impossible in light of the fact that "[t]he purpose of a Richardson inquiry is to ferret out procedural, rather than substantive, prejudice." 500 So.2d at 126 (quoting Wilcox, 367 So.2d at 1023.) We explained:

The certified question in [Smith ] misapprehends the very purpose of a Richardson hearing, which is precisely to determine if a violation is, in fact, harmless. One cannot determine whether the state's transgression of the discovery rules has prejudiced the defendant (or has been harmless) without giving the defendant the opportunity to speak to the question. We repeat what the court made clear in Wilcox. A reviewing court cannot determine whether the error is harmless without giving the defendant the opportunity to show prejudice or harm. 367 So.2d at 1023. In Wilcox, ... this Court explained that the question of "prejudice" in a discovery context is not dependent upon the potential impact of the undisclosed evidence on the fact finder but rather upon its impact on the defendant's ability to prepare for trial[.]

500 So.2d at 126.

This distinction between substantive and procedural prejudice in the context of discovery violations continues to be a valid one. However, this case demonstrates that there are cases in which a reviewing court can determine that a discovery violation is harmless beyond a reasonable doubt, absent an adequate Richardson inquiry at the trial level. ² 2] Here, we can say beyond a reasonable doubt that neither the discovery violation nor the trial court's failure to inquire into whether corrective sanctions were warranted materially hindered the defendant's trial preparation or strategy.

We explained in DiGuilio that a defendant has a constitutional right to a fair trial free of harmful error. This right has been recognized by the legislature in section 924.33, Florida Statutes (1993), which provides that harmless error analysis is applicable to all judgments. ³ While the courts may establish a rule of per se reversal for certain types of errors, a per se rule is appropriate only for those errors that always vitiate the right to a fair trial and therefore are always harmful. 491 So.2d at 1134-35. With this restriction in mind, we have never held that the failure to conduct a Richardson hearing always results in an unfair trial. Rather, we established the per se reversal rule based on our assumption that "no appellate court can be certain that errors of this type are harmless." Cumbie v. State, 345 So.2d 1061, 1062 (Fla.1977).

While in the vast majority of cases this assumption holds true, we now recognize that there are cases, such as this, where a reviewing court can say beyond a reasonable doubt that the defense was not prejudiced by the...