Cuminotto v. State

101 So. 3d 930, 2012 WL 6027815
CourtDistrict Court of Appeal of Florida
DecidedDecember 5, 2012
DocketNo. 4D10-2639
StatusPublished
Cited by5 cases

This text of 101 So. 3d 930 (Cuminotto v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cuminotto v. State, 101 So. 3d 930, 2012 WL 6027815 (Fla. Ct. App. 2012).

Opinion

MAY, C.J.

The defendant appeals his conviction and sentence on two counts of lewd and lascivious molestation, one count of lewd and lascivious exhibition, and one count of sexual activity with a child. He claims error in the trial court’s failure to conduct [932]*932a Richardson1 hearing, denial of his motion for continuance, and limitation of cross-examination. He also argues the ineffectiveness of trial counsel. We find merit in the denial of the defendant’s motion for continuance and reverse.

The charges arose when the defendant’s estranged wife, who was then living in Michigan, called the Boynton Beach Police Department, alleging the defendant had molested their daughter several times the year before when the family resided in Florida. The daughter was twelve or thirteen at the time. The probable cause affidavit contained attestations from the estranged wife and daughter that the abuse consisted of specific acts. It also indicated that both Boynton Beach and Michigan authorities were investigating the allegations.

When the family lived in Florida, the defendant had been the primary caretaker of his daughter; the ex-wife spent little time at home. The arrangement remained the same when the family moved to Michigan together. The family remained together until the defendant left Michigan to set up a business in Ocala with his father. He planned to have his daughter move to Ocala once the business was off the ground.

The family had moved ten to eleven times and the daughter had attended twelve different schools. According to the daughter, she felt settled and stable in Michigan for the first time in her life, and was developing strong friendships. She did not want to move, but she knew she “didn’t have any influence” over the move. Around the same time the estranged wife called the Boynton Beach police, the daughter was also “really disappointed” in the defendant because he had not given her the particular cell phone she wanted for her birthday.

The defendant was subsequently arrested in Florida. Ten days later, a medical exam was performed on the daughter by the Michigan Child Protection Team. The examining physician authored a report to the daughter’s primary care physician. The document was stamped “Unsigned Document-NOT to be used for legal purposes.” The Michigan Exam Report indicated no physical signs of sexual abuse.

About two months after the initial phone call to police, the State of Florida filed a four-count Information charging the defendant with specific acts of sexual abuse during a seven-month period a year before. Over time, counts were added, modified, and dropped in different versions of the charging instrument.

Nearly a year and a half after the original charges were filed, the State filed a Second Amended Information. This Information charged the defendant with seven counts, six of which alleged entirely different acts from the original Information, and covered a period of more than five years. The defendant was now accused of having molested his daughter when she was under the age of twelve.

The State filed its Answer to Notice of Discovery, purporting to provide all information and material, including reports and statements, within the State’s possession. The State’s exhibit list included only four Category “A” witnesses: the defendant’s ex-wife, his daughter, a Boynton Beach police officer, and a Michigan police officer. Neither the author of the Michigan Exam Report nor any other medical provider was identified as a person known to have information regarding the case.

The evidence checklist included only statements of the defendant, witness state[933]*933ments, a video tape, and a recorded phone call between the defendant and victim. Despite the Michigan Exam Report having been created almost two months earlier, it was not included on the State’s checklist. The State’s “Supplemental Discovery” disclosed statements attributed to the defendant, additional Michigan and Florida law enforcement officers listed as Category “A” witnesses, certified copies of the defendant’s prior convictions, and correspondence from the defendant. None of the filings disclosed the Michigan Exam Report or identified anyone with knowledge of the Report.

About eighteen months after the abuse was originally reported to law enforcement and five months prior to trial, a previous public defender traveled to Michigan to take the depositions of the defendant’s daughter and ex-wife. In those depositions, the Michigan medical exam was disclosed.

Approximately two months later, while the defendant was representing himself, he wrote to the trial court requesting the records of other medical exams performed on his daughter in 2007 by a family doctor in Florida. The trial court treated the lengthy letter as a motion to disqualify and summarily denied it without addressing the defendant’s request.

Subsequently, the trial court again appointed a public defender to represent the defendant. The lawyer who took over the case was involved in two trials throughout the time leading up to the defendant’s trial. Nevertheless, he reviewed the Michigan deposition transcripts and discovered the Michigan Exam Report. Because he thought the Report might be exculpatory, and had not been identified or turned over by the State, he requested the State to turn over the records immediately. The State refused.

Defense counsel then filed a Motion to Issue Subpoenas Duces Tecum and scheduled a hearing a week later, seventeen days before the trial ultimately began. On the day of the hearing, the State agreed to turn over the Michigan Exam Report, but the hearing to determine the status of the Florida medical records was postponed four days. The Michigan Exam Report was turned over a mere thirteen days before trial. The next day, the trial court granted the defense motion for subpoena of the Florida medical records, but required an in camera inspection before release.

On the following day, defense counsel moved to continue the trial for sixty days. The motion specifically referenced the State’s failure to disclose the Michigan Exam Report and that the trial court had just granted the defense motion to issue a subpoena for the Florida medical records. Defense counsel had just completed another week-long trial the week before the defendant’s trial was scheduled to begin.

After being told that the trial would be continued for nearly five months, defense counsel learned that the trial had been set before a different judge and would commence in four days. When defense counsel asked to be heard, he was informed that he would be heard on the trial court’s next business day, the morning of trial.

Prior to the hearing, defense counsel filed a Statement of Counsel, in which he explained the State’s extreme delay in disclosing and providing the Michigan Exam Report, and the fact that he had yet to obtain the Florida medical records. Defense counsel explained that this had prevented him from properly preparing for trial.

Before jury selection began, the pre-trial judge heard the motion for continuance. Defense counsel reiterated the basis for the motion. The State responded that the [934]*934Michigan Exam Report was not exculpatory, and that the prior public defender had learned of the report during depositions.

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Cite This Page — Counsel Stack

Bluebook (online)
101 So. 3d 930, 2012 WL 6027815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuminotto-v-state-fladistctapp-2012.