Lavigne v. StateLavigne v. State
Gary William LAVIGNE, Appellant (Defendant),
v.
STATE of Florida, Appellee (State).
District Court of Appeal of Florida, First District.
*179 Miсhael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, Tallahassee, for appellant.
Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
MILLS, Judge.
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,
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 *180 a witness to an oral statement made by him. There is no requirement that Lavigne ask for a continuance because the State violated a rule of criminal procedure. The law does not require that a defendant claim prejudice; the law requires that the State prоve there is no prejudice to the defendant. The trial court did not make the inquiry required by Richardson v. State, supra. This was error.
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,
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 doеs not require that a defendant 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,
"* * * 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 questiоn must be considered by an 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 criminаl cases that are 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 hаs been developed 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 entitlеs him, as a matter of right, to 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 probаbly had knowledge of facts 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 defеnse of the charge against him. It was never intended to furnish a *181 defendant with a procedural device to escape justice. * * *" (246 So.2d at page 774 )
Later, in Williams v. State,
"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-сompliance with the rule 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,
"Williams v. State,316 So.2d 267 (Fla. 1975), is controlling. There has been no showing by the defendant of prejudice or manifest injustiсe. We agree with the District Court of 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 somеwhat difficult to reconcile the several cases above cited, it is apparent (at least as of the date of the opinion sub judice) that the Cumbie deсision is the latest pronouncement of our Supreme Court and we are mandated to follow it. (Hoffman v. Jones,
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.