The State of Florida v. Kurt Richard Denninghoff

• Court: District Court of Appeal of Florida
• Decided: April 10, 2024
• Docket: 2023-0464
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 10, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D23-0464 Lower Tribunal No. 21-637-A-P ________________

The State of Florida, Appellant,

vs.

Kurt Richard Denninghoff, Appellee.

An Appeal from the County Court for Monroe County, Sharon I. Hamilton, Judge.

Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for appellant.

Halford G. Schuhmacher, P.A., and Hal Schuhmacher, for appellee.

Before LOGUE, C.J., and MILLER and BOKOR, JJ.

BOKOR, J. The State of Florida appeals an order dismissing Kurt Richard

Denninghoff’s misdemeanor charge of driving under the influence. During

the trial, the parties realized that a State’s witness had prepared a short

report, which was not turned over to Denninghoff’s counsel pretrial. The trial

court conducted a Richardson1 hearing, concluding that while the violation

was inadvertent, the resulting prejudice to the defense was substantial due

to “how it would have affected the defense in their questioning.” The trial

court then dismissed the charges. The State appeals.2 We review the trial

court’s dismissal of a criminal charge as a sanction for a discovery violation

for abuse of discretion.3

BACKGROUND

At approximately 1:22 am on May 22, 2021, Monroe County Sherriff’s

Deputy Moreno and Officer Torres were conducting simultaneous traffic

stops on the northbound shoulder of Overseas Highway in Islamorada,

Monroe County, with Deputy Moreno located approximately 200-300 yards

south of Officer Torres. They were within eyesight of each other. During the

traffic stops, a vehicle almost hit Deputy Moreno, while also failing to yield,

1 Richardson v. State, 246 So. 2d 771 (Fla. 1971); see also Fla. R. Crim. P. 3.220(n). 2 Counsel for Denninghoff filed no responsive brief or memorandum of points of authority in response to the State’s initial brief. 3 State v. Carpenter, 899 So. 2d 1176, 1182 (Fla. 3d DCA 2005).

2 slow down, or otherwise react to the activated emergency lights of Deputy

Moreno’s marked patrol vehicle. Deputy Moreno radioed Officer Torres and

informed him that a white Ford F-150 almost hit him, to which Officer Torres

noted that the vehicle was passing him as they spoke. Detective Moreno

asked Officer Torres to conduct a traffic stop, which he did. Officer Torres

approached the stopped vehicle, talked with the driver, Denninghoff, and a

passenger, explained the reason for the stop, and noticed indicia of

impairment as well as the odor of alcohol. Additionally, Officer Torres noted

an open 12-ounce beer can in the center console within reach of the driver.

At this time, Deputy Moreno arrived to provide backup, having finished

his previous traffic stop. Based on the observations made and Denninghoff’s

responses, Officer Torres conducted a field sobriety test. Based on the

results of the field sobriety tests, Officer Torres placed Denninghoff under

arrest for driving under the influence and brought him to the local station for

further testing, which was refused. Denninghoff was issued a citation for

violation of Fla. Stat. § 316.193(1).

The matter proceeded to trial in Monroe County. The State presented

two witnesses: the arresting officer, Officer Torres, for whom the State

furnished an incident report during pretrial discovery, and Deputy Moreno,

for whom the State furnished no report. Upon the witness, Deputy Moreno,

3 mentioning his incident report during cross-examination, the defense

requested a Richardson hearing. The State admitted that Deputy Moreno’s

supplemental report, which may have been added as a supplement to the

main report, was not provided because the supplemental report was not in

the State’s system and had to be pulled from a different system. The State

admitted it wasn’t provided but argued that the omission was not willful, and

any violation was trivial and didn’t prejudice Denninghoff.

The trial court agreed with the State that the violation constituted an

inadvertent failure to disclose, but ultimately found that the violation was

substantial and had a prejudicial effect on the defense’s trial preparation.

The State noted that both officers were available for additional questioning

and offered to strike Deputy Moreno’s testimony in its entirety. The defense

requested a dismissal, which the trial court felt it had no choice but to grant.

ANALYSIS

On the record before us, the trial court abused its discretion. As this

court has explained, dismissal is an extreme sanction, to be used with

caution, and only when a lesser sanction wouldn’t achieve the desired result.

Carpenter, 899 So. 2d at 1182; State v. L.E., 754 So. 2d 60, 61 (Fla. 3d DCA

2000); see also State v. Del Gaudio, 445 So. 2d 605, 608 (Fla. 3d DCA 1984)

(“Dismissal of an information or indictment is an action of such magnitude

4 that resort to such a sanction should only be had when no viable alternative

exists.”) (quotation omitted). The supplemental report of Deputy Moreno

(constituting less than a page of the full 9 pages of the combined reports of

the two officers) contains almost nothing (and certainly nothing contradictory

or substantive) not already in Officer Torres’ detailed report. Certainly, the

supplemental report contained no exculpatory evidence; further, no fair

reading would show any contradiction between the two reports. At most, it

is unclear based on this record, and after reviewing the excluded report,

whether anything more than recalling the witness would have been

necessary. Accordingly, we reverse the order of dismissal and remand for

further proceedings.

Reversed and remanded.