Small v. StateSmall v. State
We have for review Small v. State, 608 So.2d 829 (Fla. 3d DCA 1992), in which the district court held that the trial court must сonduct a hearing to determine whether good cause existed to prevent the defendant‘s alibi witness from testifying. We accepted jurisdiction based on argued conflict with Smith v. State, 372 So.2d 86 (Fla. 1979), and Smith v. State, 319 So.2d 14 (Fla. 1975), pursuant to
Larry Smаll, who was charged with robbery, told his defense counsel shortly before the start of jury selection that an alibi witness was available to testify on his behalf. Defense counsel advised the сourt and the State of the existence of a possible alibi witness and asked for leave to allow the witness to testify even though the ten-day notice requirement of
Prior to Small‘s retrial the defendant had not filed a written 3.200 notice and the state verbally announced that it had not deposed the alibi witness. Without conducting any further inquiry into the matter, the court ruled that the alibi witness would be precluded from testifying at trial. The jury found Small guilty as charged and the court sentenced him to a term of imprisonment. On appeal the district court ruled that the exclusion of Small‘s alibi witness without first inquiring into the сircumstances surrounding his failure to comply with rule 3.200 constituted an abuse of discretion. The district court remanded
with directions ... to determine whether or not good cause existed to waive the requirements of rule 3.200. If the trial court determines that good cause has been shown, defendant‘s conviction and sentence should be vacated and a new trial ordered... . If, however, the trial court determines that no good cause is shown, the court will transmit back to this court the entire record, including a transcript of the hearing on the surrounding circumstances regarding the defendant‘s failure to comply with the rule, and a copy of the court‘s order.
Small argues that the exclusion of a defense alibi witness based on a violation of rule 3.200, without first inquiring into the circumstances surrounding that violation, automatically requires reversal of the conviction and remand for a new trial. In Richardson v. State, 246 So.2d 771 (Fla. 1971), this Court held that the trial court has discretion tо determine whether noncompliance with the rule of discovery in
We disagree with Small‘s initial premise that rule 3.200 and rule 3.220 are fundamеntally the same. Although the two rules share the same rationale, to eliminate surprise at trial, the notice of alibi rule is not a discovery rule. Rule 3.200 also diminishes the opportunity of presenting manufactured false alibis. Hicks v. State, 400 So.2d 955 (Fla. 1981). Under the ten-day notice requirement, the state is at least advised of the existence of the alibi and has the option of investigating it. If the state goes to trial without this notice, it does not have the opportunity to depose the alibi witness, determine the witness‘s credibility,
Rule 3.220, like the notice of alibi rule, was designed to ensure that both the state and the defense have knowledge of relevant information regarding the case and are properly prepared for trial. However, unlike the notice of alibi rule, a violation of rule 3.220 will not always result in prejudice. For that reason, rule 3.220(n) provides a choice among sanctions the court may impose for violation of the rule. After conducting a Richardson inquiry, the court can determine how severe the sanction should be based on the degree of prejudicial impact caused by the discovery violation. The notice of alibi rule does not provide a list of sanctions comparable to that in rule 3.220 because a violation of the notice of alibi rule will always result in prejudice. In contrast to rule 3.220, the notice of alibi rule limits the court to excluding the alibi evidence or waiving the requirement for good cause if the defendant fails to provide the state with the requisite noticе. Because a violation of the notice of alibi rule is not completely analogous to a failure to furnish discovery information under rule 3.220, the decisional law applying tо rule 3.220 is not equally applicable to the notice of alibi rule.
We also disagree with Small‘s general contention that the trial court‘s failure to allow the defendant an oрportunity to show good cause for his failure to comply with rule 3.200 constitutes reversible error. Under both the statutory law and case law of this state, a judgment shall not be reversed unless thе appellate court is of the opinion that the error injuriously affected the substantial rights of the appellant.
A Richardson inquiry “is designed to ferret out procedural prejudice occasioned by a party‘s discovery violation.” Smith, 372 So.2d at 88. A good cause hearing, on the other hand, is designed to determine whether good cause existed to waive the requirements of the notice of alibi rule. While a trial court‘s failure to conduct a Richardson inquiry has been treated as per se reversible error, Smith v. State, 500 So.2d 125 (Fla. 1986), we hold that a trial court‘s failure to conduct a good cause hearing regarding compliance with the notice of alibi rule should be reviewed to determine whether the defendant was harmed by such failure.
Wе approve the district court‘s decision and remand the case with the directions given by the district court.
It is so ordered.
OVERTON, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.
BARKETT, C.J., concurs with an opinion.
BARKETT, Chief Justice, concurring.
I join the majority opinion because the defense counsel in this case clearly knew of the existence of the alibi witness long before the second trial began and had ample opportunity to comply with the requirements of rule 3.200.
The record rеflects that the defense counsel in Small‘s first trial repeatedly expressed the desire and intention to file a notice of alibi if given the opportunity. He had the opportunity when the first trial ultimately ended in a mistrial, but when the second trial began some six weeks later, the defense counsel still had not complied with rule 3.200
Given these circumstances, it was not an abusе of discretion for the trial court to exclude Small‘s alibi witness without first inquiring into the circumstances surrounding his failure to comply with the rule.