DYLAN THOMAS ROBERTS vs STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: October 14, 2022
• Docket: 21-2537
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

DYLAN THOMAS ROBERTS,

Appellant,

v. Case No. 5D21-2537 LT Case No. 18-CF-3729-A-X

STATE OF FLORIDA,

Appellee.

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Opinion filed October 14, 2022

Appeal from the Circuit Court for Marion County, Steven G. Rogers, Judge.

Matthew J. Metz, Public Defender, and Darnelle Paige Lawshe, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

NARDELLA, J.

Dylan Thomas Roberts raises two issues in the appeal of his judgment

and sentence for vehicular homicide and causing death while driving on a suspended license. First, he argues that the trial court erred when it held a

discovery violation committed by the State was trivial and did not

substantially hamper the defense’s trial preparation and strategy. Second,

he argues that the trial court applied the wrong standard to deny his motion

for new trial. We examine each issue in turn.

As to the first issue, Roberts argues that the State committed a

discovery violation when it disclosed the investigating officer as a witness,

without ever indicating that he would offer expert testimony. The defense

deposed the investigating officer before trial, during which he offered his

opinion as to the cause of the accident but provided little explanation to

support his conclusion. During trial, though, the officer repeated his

conclusion but provided more explanation about the facts supporting his

opinion.

In response to the new testimony, Roberts requested a Richardson

hearing, Richardson v. State, 246 So. 2d 771 (Fla. 1971), claiming the State

failed to disclose the investigating officer as an expert witness. During the

Richardson hearing, the trial court considered whether the discovery

violation was inadvertent or willful, substantial or trivial, and had a prejudicial

effect on Roberts’ trial preparation. See Andres v. State, 254 So. 3d 283,

293 (Fla. 2018) (citation omitted).

2 Agreeing with Roberts, the trial court found the State’s failure to list the

investigating officer as an expert witness constituted a discovery violation.

The trial court then specifically asked counsel to explain how Roberts was

prejudiced by the discovery violation, to which his counsel stated only that

the investigating officer’s trial testimony was a “complete contradiction” to his

deposition testimony. Focused on the only argument offered, the trial court

ruled that Roberts could bring out the alleged inconsistencies during his

cross-examination of the witness.

Now, for the first time in this case, Roberts explains that had he known

the investigating officer was going to offer expert testimony he would have

retained his own expert to rebut that testimony. The failure to raise this

specific argument below deprived the trial court from considering it and,

hence, it was not preserved for our review. See § 924.051(3), Fla. Stat.

(2020) (requiring preservation in criminal cases); Tillman v. State, 471 So.

2d 32, 35 (Fla. 1985) (“[i]n order to be preserved for further review by a higher

court, an issue must be presented to the lower court and the specific legal

argument or ground to be argued on appeal or review must be part of that

presentation if it is to be considered preserved.”); I.R.C. v. State, 968 So. 2d

583, 589 (Fla. 2d DCA 2007) (“A defendant may not argue in the trial court

that a consent was involuntary for certain reasons and then obtain a reversal

3 on appeal on the ground that the consent was involuntary for other reasons.

Any specific reason for reversal must be a specific reason that was advanced

by the appellant in the trial court.”).1 Accordingly, we neither consider nor

express any opinion regarding the merit of the first issue.

Roberts’ second issue fares better. A motion for new trial requires the

trial court to evaluate whether the jury’s verdict is contrary to the weight of

the evidence and to act, in effect, as an additional juror. Fla. R. Crim. P.

3.600(a)(2); Tibbs v. State, 397 So. 2d 1120, 1123 n.9 (Fla. 1981). Here,

the trial court appears to have applied the sufficiency of the evidence

standard to deny the motion for new trial. As the State concedes, this was

error. See Jordan v. State, 244 So. 3d 1178, 1179 (Fla. 1st DCA 2018)

(reversing denial of motion for new trial where trial court implied that it denied

the motion because there was insufficient evidence to allow the jury to reach

the opposite decision); Fulword v. State, 29 So. 3d 425, 426 (Fla. 5th DCA

2010) (reversing denial of motion for new trial where it appeared the trial

1 We find Roberts’ reliance on Scipio v. State, 928 So. 2d 1138 (Fla. 2006) in favor of preservation unavailing. In that case, the trial court did not hold a Richardson hearing and, thus, the defendant was deprived of an opportunity to argue that he was prejudiced by the State’s discovery violation. Id. Here, the trial court held a proper Richardson hearing and, thus, unlike the situation in Scipio, Roberts had an opportunity to explain how he was prejudiced by the State’s discovery violation. Therefore, as discussed above, any specific argument regarding prejudice that was not raised before the trial court was not preserved for appeal. 4 court did not apply the correct standard); Geibel v. State, 817 So. 2d 1042,

1045 (Fla. 2d DCA 2002) (reversing denial of motion for new trial where it

was unclear whether the trial court applied the correct standard).

Accordingly, we reverse the order denying Roberts’ motion for new trial and

remand the case to the trial court to consider the weight of the evidence when

ruling on the motion for new trial. See Fulword, 29 So. 3d at 426.

AFFIRMED in part; REVERSED in part; and REMANDED.

EDWARDS and EISNAUGLE, JJ., concur.