Barnes v. StateBarnes v. State
Robert L. Shevin, Atty. Gen., Tallahassee, and Guy E. Labalme, Asst. Atty. Gen., Tampa, for appellee.
HOBSON, Acting Chief Judge.
Appellant Barnes seeks reversal of a judgment of conviction and sentence for the crime of assault with intent to commit a felony, to wit, robbery. He contends that the lower court erred in refusing to permit his alibi witnesses to testify.
Shortly after Barnes was charged by information with robbery, the Public Defender filed on his behalf numerous pre-trial discovery motions, as well as an offer to exchange witness lists. In compliance with his offer to exchange witness lists, the Public Defender furnished the names of three witnesses he expected to call. The State filed a Demand for Notice of Alibi pursuant to
In Bell v. State, Fla.App.2d 1974, 287 So.2d 717, which also involved
The Supreme Court of Florida has held that the discretion of the trial judge to exclude witnesses for failure to comply with
We think it is equally necessary that the trial judge inquire into the circumstances surrounding the failure of either party to comply with the requirements of
In the case sub judice the testimony of the witnesses would have been material to appellant‘s case as the claim of alibi was his sole defense. The record is silent as to whether the noncompliance with the rule was inadvertent or willful, whether it was trivial or substantial, whether it would be harmful or prejudicial to the State, or whether the State could claim great surprise inasmuch as the names of the witnesses had been furnished to the State more than two months before trial.
We therefore hold that the trial court abused its discretion in excluding the testimony of appellant‘s witnesses without first inquiring into the surrounding circumstances.
In making this decision we have not overlooked the holding in Cox v. State, Fla.App.3d 1969, 219 So.2d 762. However, the decision in Cox was rendered more than two years before Richardson and four years before Bradford. Also, it is not clear from the opinion in Cox or in Chester v. State, Fla.App.2d 1973, 276 So.2d 76, whether an inquiry was made prior to excluding the witnesses.
The failure of the trial judge to make such inquiry into these circumstances does not require vacation of the judgment and sentence at this time. See Knight v. State, Fla.App.3d 1964, 164 So.2d 229; Fowler v. State, Fla. 1971, 255 So.2d 513; Cf. Land v. State, Fla. 1974, 293 So.2d 704, op. filed March 20, 1974.
We accordingly temporarily remand the cause to the trial judge with directions that he hold a hearing to determine whether or not good cause exists to waive the requirements of
Appellant‘s other point raised on this appeal is without merit.
Remanded with directions.
McNULTY and BOARDMAN, JJ., concur.