Lavigne v. StateLavigne v. State
A jury convicted Lavigne of robbery with a firearm. He appeals.
The issue which is determinative of this appeal is whether the trial court erred when it allowed the testimony of a police officer concerning an oral statement made to him by Lavigne which was not disclosed by the State in response to Lavigne‘s dеmand for discovery.
As provided by
Where the Stаte violates a Rule of Criminal Procedure, the trial court must make a full inquiry into all the circumstances surrounding the breach to determine whether the defendant is prejudiced by the State‘s noncompliance. The State has the burden of showing to the trial court that there is no prejudice to the defendant. Failure of the trial сourt to make a full inquiry requires reversal of a conviction. Richardson v. State, supra; Cumbie v. State, 345 So.2d 1061 (Fla. 1977), opinion filed 17 March 1977.
The State did not furnish Lavigne with the substance of the oral statement made by him nor did it inform him that Officer Sciadini was a witness to the statement. This was a violation of
The State argues that it informed Lavigne that Sciadini would be a witness at the trial, that the State made Sciadini available fоr interview or deposition, that Lavigne did not move for a continuance, that Lavigne does not claim prejudice and that the trial court‘s inquiry was sufficient. None of these arguments has merit. Lavigne had no reason to interview or take Sciadini‘s deposition because he had not been informed by the State as required by a rulе of criminal procedure that Sciadini was
Because we are required to reverse the judgment of conviction and remand for a new trial, it is unnecessary that we discuss the other points raised by Lavigne.
Reversed and remanded for a new trial.
McCORD, J., concurs.
BOYER, C.J., concurs specially.
BOYER, Chief Judge, concurring specially.
The law succinctly announced by my brother Mills in the foregoing opinion authored by him is to me shocking, but I concede that it appears to be in conformity with the latest pronouncement by the Supreme Court of Florida in Cumbie v. State, 345 So.2d 1061 (Fla. 1977), Case No. 49,134 not yet reported. The effect of the opinion is to explicitly declare the harmless error statute (
It is noted that in the foregoing opinion Judge Mills unequivocally asserts:
“Where the State violates a Rule of Criminal Procedure, the trial court must make a full inquiry into all the circumstances surrounding the breach to determine whether the defendant is prejudiced by the State‘s noncompliance. The State has the burden of showing to the trial court that there is no prejudice to the defendant. Failure of the trial court to make a full inquiry requires reversal of a conviction.
* * * * * *
“* * * The law does not require that a dеfendant claim prejudice; the law requires that the State prove there is no prejudice to the defendant. * * *” (Emphasis added)
In the foregoing opinion Judge Mills cites as authority, inter alia, Richardson v. State, 246 So.2d 771 (Fla. 1971), as did the Supreme Court in Cumbie v. State, supra. However, in Richardson v. State, the Supreme Court said:
“* * * we hold that the violation of a rule of procedure prescribed by this Court does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant. * * * Furthermore, the Rule in question must be considered by аn appellate court in pari materia with the provisions of our harmless error statute, viz,
F.S. 924.33 , F.S.A. which provides that rulings or proceedings in criminal cases that arе not prejudicial or harmful do not require reversal. As stated in Howard v. State, Fla.App., 239 So.2d 83, supra:
“‘The cited statute is but a codification of the “harmless error“’ doctrine which has been develoрed by judicial decision to avoid reversal in cases where it appears that justice has been served and that in all probability a new trial with the same admissible evidence would not alter the end result.’
“See Urga v. State, 155 So.2d 719, Fla. App. 1963, and cases cited therein.
“Therefore, petitioner‘s contention that the State‘s non-compliance with the Rule entitles him, as a matter of right, tо have a non-listed witness excluded from testifying, or to have a mistrial where it becomes evident during the trial that there existed a witness who probably had knowledge of fаcts relevant to petitioner‘s defense, is not tenable. The Rule was designed to furnish a defendant with information which would bona fide assist him in the defense of the chargе against him. It was never intended to furnish a
defendant with a procedural device to escape justice. * * *” (246 So.2d at page 774)
Later, in Williams v. State, 316 So.2d 267 (Fla. 1975), the Supreme Court, citing and quoting from Richardson v. State, supra:
“We agree with this Standard. It is in accordance with Richardson v. State, 246 So.2d 771, 774 (Fla. 1971), where we said: “‘... [W]e hold that the violation of a rule of procedure prescribed by this Court does not call for a reversal of a conviction unless the record discloses that non-compliance with the rulе resulted in prejudice or harm to the defendant... .’
“The quoted American Bar Association Standard clearly puts the burden on the defendant to ‘prove’ a ‘manifest injustice’ has occurred. In other words, clear prejudice must be shown. * * *” (316 So.2d at page 274; emphasis added)
On the same date the same court, in Estes v. State, 316 So.2d 276 (Fla. 1975), affirming the result reached by this Court which affirmed appellant‘s conviction, said:
”Williams v. State, 316 So.2d 267 (Fla. 1975), is controlling. There has been no showing by the defendant of prejudice or manifest injustice. We agree with the District Court оf Appeal that the defendant has failed to demonstrate in this record how he has been prejudiced by the particular guilty plea procedure used in this cause. * * *” (316 So.2d at p. 277)
Therefore, in Richardson v. State, Williams v. State, and Estes v. State, the Supreme Court cited and applied the “harmless error” statute and doctrine and required a showing of prejudice as a condition to reversal.
However, in Cumbie v. State, supra, the Supreme Court, in a unanimous per curiam opinion, stated and apparently held:
“The trial court erred in admitting into evidence the testimony concerning the alleged statement of the petitioner without conducting an inquiry into the question of prejudice, and this error is reversible as a matter of law. * * *” (Emphasis added)
Although I personally find it somewhat difficult to reconcile the sevеral cases above cited, it is apparent (at least as of the date of the opinion sub judice) that the Cumbie decision is the latest pronouncement оf our Supreme Court and we are mandated to follow it. (Hoffman v. Jones, 280 So.2d 431 (Fla. 1973)
I therefore, albeit with trepidations, concur not only with the result reached but also with the reasoning applied by Judge Mills in the foregoing opinion.