State v. Williams, 69-210

• Decision Date: 03 October 1969
• Docket Number: No. 69-210,69-210
• Citation: 227 So.2d 253
• Parties: STATE of Florida, Petitioner, v. Richard Eugene WILLIAMS and William L. Williams, Respondents.
• Court: Florida District Court of Appeals

Page 253

227 So.2d 253

STATE of Florida, Petitioner, v. Richard Eugene WILLIAMS and William L. Williams, Respondents.

No. 69-210.

District Court of Appeal of Florida, Second District.

Oct. 3, 1969.

Rehearing Denied Nov. 5, 1969.

Frank Schaub, State Atty., Bradenton, J. Blan Taylor, Asst. State Atty., Naples, and

LeRoy Hill, Asst. State Atty., Punta Gorda, for petitioner.

William N. Avera, Gainesville, for respondent William L. Williams.

C. Harris Dittmar, Jacksonville, for respondent Richard Eugene Williams.

LILES, Acting Chief Judge.

Respondents, defendants below, were arraigned and entered pleas of not guilty to an indictment charging defendant Richard Eugene Williams with first degree murder, second degree arson and conspiracy to commit arson, and defendant William L. Williams with conspiracy to commit arson. Respondents then filed motions to grant certain items of discovery, but the trial court deferred argument on these motions. Thereafter, on February 11, 1969, upon hearing argument of counsel, the court entered an order compelling the State, inter alia, to produce for defendants' inspection '* * * any written or recorded statements, memorandum (sic) or summaries of oral statements by any person to any agent of the state in their possession.' This order was filed with the Clerk of the Circuit Court on March 11, 1969. The State petitioned for a rehearing on the order granting the above portion of respondents' motion and after lengthy discussion the petition for rehearing was denied. The State then petitioned for a common law writ of certiorari requesting this Court to quash the portion of the order of the Circuit Court set forth above. Respondents have filed in this court a motion to quash or dismiss the State's petition for certiorari, which was deferred until consideration on the merits.

I. MOTION OF RESPONDENTS TO QUASH OR DISMISS THE PETITION FOR COMMON LAW WRIT OF CERTIORARI

In support of their motion to quash or dismiss the common law writ of certiorari respondents first urge that this court lacks jurisdiction to entertain the petition because it was not filed within thirty days from rendition of the order sought to be reviewed as provided by Rule 4.5, subd. c(1), F.A.R., 32 F.S.A. This order, though entered on February 11, 1969, was filed on March 11, 1969. The latter date is clearly the crucial date for timely filing under Rule 1.3, F.A.R. The record shows that the petition was filed in this court on April 9, 1969, well within the thirty day period, and was thus timely filed.

Respondents also urge that the petition be dismissed because it shows on its face that it was not accompanied by a certified transcript of the record of the proceedings sought to be reviewed and because no copy of the transcript was served on respondents' attorneys as required by Rule 4.5, subd. c(1) and (2), F.A.R. However, a certified transcript of the record of the proceedings in fact accompanied the petition upon completion of the record, and thus there was substantial compliance with Rule 4.5, subd. c(1). While respondents complain in their brief that they have not been served with a copy of the transcript, no prejudice or hardship has been alleged or demonstrated in this regard; and references made in their brief on the merits to the transcript of the record of the proceedings below militates against any inference of lack of access to the transcript. The requirements of Rule 4.5, subd. c(2) are not jurisdictional, and technical violations may be excused within the sound discretion of this court. See Russom v. State, Fla.1959, 109 So.2d 30, 31. We now exercise that discretion in finding sufficient justification in the above facts for excusing this violation.

II. CONSIDERATION OF THE MERITS

Petitioner sets forth the following reasons why this court should grant certiorari and quash the order sought to be reviewed: (1) since the order is not authorized by statute or the Florida Rules of Criminal Procedure it is not permissible; (2) the order invades the work produce of the prosecuting attorney, which is inviolate under Florida law; (3) the order is not authorized under Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and its progeny, as these cases are, or should be, concerned only with post-conviction relief and not pretrial discovery. These points will be considered in inverse order.

In State v. Drayton, Fla.App.1969, 226 So.2d 469, opinion filed August 27, 1969, after giving full consideration to the constitutional right of an accused under the Brady decision, we held that while an accused has a constitutionally protected right to have the prosecution disclose to him favorable evidence material either to guilt or to punishment with adequate time allowed to utilize it fully, he has no specific right under the Constitution to examine such evidence prior to trial. In the circumstances of the Drayton case, we found that After a predicate had been established by the accused bringing a discovery motion above the level of a 'fishing expedition,' an In camera inspection to determine whether certain grand jury testimony fell within the purview of the Brady rule was appropriate. Respondents rely on Dennis v. United States, 1966, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973, for the proposition that an accused is entitled to be the sole judge of the applicability of the Brady rule to the evidence sought to be discovered. Based on that case, respondents argue that the order of the trial court directing the State to produce for defendants' inspection '* * * any written or recorded statements, memorandum (sic) or summaries of oral statements by any person to an agent of the state in their possession' without requiring a predicate or In camera inspection was proper. We cannot agree.

Dennis is rather difficult to decipher in terms of the Brady rule, since Brady was neither cited nor argued in the case or the briefs filed. Dennis does delineate the outer limits of discovery of grand jury testimony under the Federal Rules of Criminal Procedure--if there is a showing of a particularized need, defense counsel may have direct access to relevant portions of the grand jury testimony of a trial witness while these witnesses are still available for cross-examination. But Dennis does not decide the broader question of whether, under Brady, there is a right to inspect evidence favorable to an accused without a proper predicate being established. In addition, Dennis cannot be used in support of a right to pretrial discovery, as the holding of the case is focused exclusively on the trial setting. The constitutional bases of the two cases are also distinguishable since Dennis is concerned, at least indirectly, with the right of confrontation established by the Sixth Amendment of the United States Constitution and Brady is bottomed on the Due Process Clause of the Fourteenth Amendment. In this light our conclusion in State v. Drayton, supra 226 So.2d, at p. 473, must stand: 'As yet, no federal or state case has concluded that Brady and the Fourteenth Amendment necessitate pretrial disclosure of evidence favorable to the accused Without some predicate first...