Wendell v. State, s. WW-394

• Decision Date: 22 October 1981
• Docket Number: Nos. WW-394,XX-30,s. WW-394
• Citation: 404 So.2d 1167
• Parties: John Joseph WENDELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1167

404 So.2d 1167

John Joseph WENDELL, Appellant, v. STATE of Florida, Appellee.

Nos. WW-394, XX-30.

District Court of Appeal of Florida, First District.

Oct. 22, 1981.

Michael Allen, Public Defender, Margaret Good and Melanie Hines Alford, Asst. Public Defenders, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

The subject of these consolidated appeals is a judgment and sentence, following a jury trial, for unlawfully entering a conveyance and grand theft, Case No. WW-394, and the revocation of appellant's probation, which had resulted from a previous conviction, Case No. XX-30. We find merit in two of the points raised.

On September 1, 1979, someone broke into an automobile parked in front of Jewell's Bar in Pensacola and took a watch which had been left in the car. Appellant was charged with breaking into the car and stealing the watch. Mrs. Jewell Barr, owner of the bar, had been present at the bar when the incident occurred and was listed on the State's witness list and scheduled to testify at the jury trial. Due to a serious family illness, Mrs. Barr was unable to appear as a witness. Instead, the State called Mr. Kenneth White, who had also been present at the bar when the incident occurred outside of the bar. Mr. White had not been listed on the State's witness list pursuant to Rule 3.220, Fla.R.Cr.P.

As soon as the State announced that it would call Mr. White instead of Mrs. Barr, the trial judge said, "We can give counsel the right to depose him and there will be no bias or prejudice. They know what he's going to essentially testify to." Defense counsel stated he had no idea what Mr. White would testify to. The court replied that all it could do was give defense counsel an opportunity to depose the witness. Defense counsel brought up the subject of a Richardson inquiry, and alluded to the possibility of prejudice, stating that the defense was based on certain statements known to have been made by the original State's witness. The trial judge again stated that defense counsel could depose the witness before further testimony was taken. After the witness was deposed, defense counsel again stated his opposition to allowing the witness to testify and represented to the court that White's testimony differed "in material respects from both the police report and what my prior investigation indicates the State's witnesses were going to testify to, and I feel I've been prejudiced by the allowance of this testimony, particularly at this late date." Nevertheless, the court said he was complying with the law as stated in Cooper v. State, 336 So.2d 1133 (Fla.1976), by giving defense counsel an opportunity to depose the witness before his testimony was admitted. Subject to defense counsel's objection, Mr. White was then called by the State to testify.

We agree with appellant that the trial court erred in failing to conduct an inquiry pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971). Under Richardson, a trial court may, in its discretion, determine whether the State's non-compliance with the discovery rules would result in prejudice or harm to the defendant; however, the trial court may properly exercise its discretion only after an adequate inquiry into the circumstances surrounding the non-compliance. The inquiry may include, but is not limited to, whether the violation was inadvertent or willful, whether it was trivial or substantial, and what effect, if any, the violation had on the defendant's ability to prepare for trial. Id. The State has the burden of showing that there has been no prejudice. Cumbie v. State, 345 So.2d 1061 (Fla.1977).

Although it is apparent that the breach was unintentional,...