Z.L. v. State

• Court: District Court of Appeal of Florida
• Decided: August 30, 2017
• Docket: 2D16-3504
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

Z.L., ) ) Appellant, ) ) v. ) Case No. 2D16-3504 ) STATE OF FLORIDA ) ) Appellee. ) ___________________________________)

Opinion filed August 30, 2017.

Appeal from the Circuit Court for Hillsborough County; Robert A. Bauman, Judge.

Howard L. Dimmig, II, Public Defender, and Anthony C. Musto, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Z.L. appeals the disposition order finding him guilty of third-degree grand

theft. We agree with the State's concession that the trial court conducted an inadequate Richardson1 hearing.2 Accordingly, we reverse the order finding Z.L. guilty and remand

for a new adjudicatory hearing.

Z.L. is accused of having taken a Nintendo game system, five games, and

a protective case for the Nintendo from his step-brother. On the morning of the

adjudicatory hearing, the victim informed the prosecutor that Z.L. had previously

admitted to him that he committed the theft. The prosecutor chose not to disclose the

admission to the defense under the mistaken belief that Z.L. had waived disclosure by

not deposing the victim. See Powell v. State, 912 So. 2d 698, 701 (Fla. 2d DCA 2005)

("[T]he failure of the defense to depose a known witness 'is insufficient to overcome the

state's failure to inform the defense of a statement made by the defendant to which the

witness testifies.' '' (quoting Rainey v. State, 596 So. 2d 1295, 1296 (Fla. 2d DCA

1992))).

After the victim testified about the admission, Z.L. correctly argued to the

trial court that the State had committed a discovery violation by not disclosing the

statement. See State v. Evans, 770 So. 2d 1174, 1179 (Fla. 2000) ("In cases . . . where

the State fails to disclose to the defendant, prior to trial, the substance of any oral

statement allegedly made by the defendant, then the State has committed a discovery

violation and the trial court must conduct a Richardson hearing upon learning of the

1 Richardson v. State, 246 So. 2d 771 (Fla. 1971). 2 Although the State also conceded that the evidence was legally insufficient to support the charged offense, we decline to accept that concession because the issue was unpreserved and the error is not fundamental. See Young v. State, 141 So. 3d 161, 165 (Fla. 2013); Perry v. State, 808 So. 2d 268, 268 (Fla. 1st DCA 2002).

-2- possible violation."); see also Fla. R. Juv. P. 8.060(h) (imposing a continuing duty to

provide supplemental discovery).

In addressing the potential violation, the trial court did not make the

findings that Richardson requires. See Knight v. State, 76 So. 3d 879, 888 (Fla. 2011)

(explaining that when a party alleges a discovery violation, the trial court must inquire

into the surrounding circumstances and determine (1) whether a discovery violation

occurred, (2) "whether the State's discovery violation was inadvertent or willful," (3)

"whether the violation was trivial or substantial," and (4) "most importantly, what affect

[sic] it had on the defendant's ability to prepare for trial"). The court instead examined

only one of the Richardson prongs—whether the violation was inadvertent or willful—

and concluded, "to the extent that there's any violation, it was inadvertent." The court's

failure to inquire into each of the Richardson prongs was error.

Further, that error was harmful. We cannot say "beyond a reasonable

doubt that the defense was not procedurally prejudiced by the discovery violation," as

"there is a reasonable possibility that [Z.L.'s] trial preparation or strategy would have

been materially different" had he known that the State possessed an admission to the

offense. Scipio v. State, 928 So. 2d 1138, 1147 (Fla. 2006) (quoting State v. Schopp,

653 So. 2d 1016, 1020–21 (Fla. 1995)). The court's inadequate Richardson hearing

therefore necessitates a new adjudicatory hearing. See Ibarra v. State, 56 So. 3d 70,

72 (Fla. 2d DCA 2011).

Accordingly, we reverse the order finding Z.L. guilty of third-degree grand

theft and remand for a new adjudicatory hearing on that offense.

-3- Reversed and remanded.

CASANUEVA, CRENSHAW, and LUCAS, JJ., Concur.

-4-