Florida Criminal Law Opinions

Warren Tensley, pro se.

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

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Richard A. Luce, Judge.

WHATLEY, Judge.

Warren Tensley challenges the order summarily denying his motion for postconviction relief. We affirm without comment the postconviction court’s denial of Tensley’s motion in all respects except one.

In his memorandum of law in support of his amended motion for postconviction relief, Tensley argued that the record does not reveal a tactical reason for defense counsel to have allowed trial to occur after the 175-day speedy trial period expired. See Fla. R. Crim. P. 3.191(a). However, he failed to allege prejudice from trial

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counsel’s conduct by alleging ” ‘that the State could not have brought him to trial within the recapture period, ‘ ” Smith v. State, 988 So. 2d 693, 694 (Fla. 2d DCA 2008) (quoting Dexter v. State, 837 So. 2d 595, 596 (Fla. 2d DCA 2003)). Consequently, this ground is legally insufficient. Smith, 988 So. 2d at 694. Under such circumstances, pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007), this court remands “for the movant to be given the chance to amend if the movant c[an] allege that the State could not have brought him to trial within the recapture period.” Norwood v. State, 39 So. 3d 336, 337 (Fla. 2d DCA 2010). Therefore, we reverse the summary denial of the last ground addressed by the postconviction court in its order and remand with instructions to strike that claim with leave to amend within a specific period of time in accordance with Spera. Affirmed in part, reversed in part, and remanded.

ALTENBERND and NORTHCUTT, JJ., Concur.

Nancy A. Daniels, Public Defender, and Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

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An appeal from the Circuit Court for Duval County. Mallory D. Cooper, Judge.

LEWIS, J.

Abraham Brown, Appellant, appeals his convictions and sentences for burglary of an occupied dwelling, violation of an injunction for protection against domestic violence, interference with custody, and criminal mischief. Because the trial court abused its discretion in denying Appellant’s unequivocal request to

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cease self-representation and obtain appointed counsel, we are constrained to reverse for a new trial, rendering the remaining issues moot.

Appellant has now been convicted of the offenses at issue twice. He represented himself in both trials. After the first trial, we reversed Appellant’s convictions because the trial court failed to conduct an adequate inquiry to determine whether Appellant was competent to waive his constitutional right to counsel. Brown v. State, 971 So. 2d 270, 271 (Fla. 1st DCA 2008). When the case was remanded in early 2008, Appellant again undertook self-representation. He continued to represent himself throughout 2008 and did not seek to have counsel appointed again until the final pretrial hearing on April 9, 2009.

At the beginning of the final pretrial hearing, the court offered counsel to Appellant, as it was required to do under Traylor v. State, 596 So. 2d 957, 968 (Fla. 1992), and Florida Rule of Criminal Procedure 3.111(d)(5). Appellant informed the court that he would like to have “co-counsel.” When the court noted that it had not asked about co-counsel and instead had asked whether Appellant would like to have an attorney represent him, Appellant answered, “At this time, Your Honor, I [will] still proceed on my own.” Thereafter, the court asked Appellant a series of questions to determine whether he understood the advantages of having an attorney and the disadvantages of self-representation. The discussion then moved into the potential penalties Appellant would face if convicted. During

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this portion of the discussion, Appellant indicated that he did not have the scoresheet that was prepared for the first trial, stating, “I don’t have anything. That’s why I’m The court interrupted, stating, “Well, we’ll address that in a minute.”

Later in the colloquy, the court asked Appellant whether he had any questions “about having a lawyer appointed to defend [him].” At that point, the following exchange occurred:

DEFENDANT BROWN: The only question I just have just–I’m asking for a co-counsel for as far as like anything that need[s] to be filed with the court that I can’t get over here to file, like for subpoenas and stuff like that the lawyer could do on my behalf to speed the process up without being any delay and stuff. I know the Court is not going to be lenient as far as like catering to my needs and stuff and I’m–but it’s some things that I’m just–I’m hindered from being able to do from being incarcerated, you know.

THE COURT: Okay. I’ll get to that issue in a minute. Other than that issue which you told me before, and we’ll get to that in a moment, do you have any other questions about having a lawyer appointed to defend you?

DEFENDANT BROWN: No, ma’am.

THE COURT: Having been advised of your right to counsel and the advantages of having counsel and the disadvantages and dangers of proceeding without counsel, the nature of the charges and the possible consequences in the event of a conviction, are you certain that you do not want me to appoint a lawyer to defend you, other than your request for co-counsel?

DEFENDANT BROWN: Yes.

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THE COURT: Are you certain you do not want me to appoint a lawyer to defend you?

DEFENDANT BROWN: Yes, ma’am.

THE COURT: If I allow you to represent, yourself–well, let me ask the State. You indicated you wanted to be heard on this request for cocounsel before I get into that.

The State argued that Appellant was not entitled to “hybrid representation” and that he was especially not entitled to have an attorney act as his “go-for.” The State further contended that Appellant did not have an “absolute right” to withdraw his request to represent himself. As grounds for denying Appellant’s request, the State argued, in part, that Appellant had gone through the Faretta¹ inquiry many times and had “on April 17, 2008, June 25th, 2008, July 30th, 2008, October 29th, 2008, November 5th, 2008, November 24th, 2008, December 11th, 2008, and again [at the pretrial hearing] reaffirmed every time that he wishe[d] to represent himself.” The State also opined that Appellant’s request for co-counsel was “a deliberate tactical move” made “out of a continuing desire to manipulate these proceedings.”

Appellant offered the following comments in response to the State’s arguments:

I’m new to all this here and I do not deny that in any kind of way, but I was understanding that as part of my–as part of my constitutional right that I do have a right to–to representation of a counsel and that it could be appointed to me if I deemed or seen fit that I needed counsel. Now I’m asking to handle my own case and be pro se because

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I’m having a conflict with the PD’s Office about issues and stuff that the Court is not aware about…. But I’m asking this because I believe this is in my best interest. I’m admitting straight up to the Court I don’t know the law like that there and I’m just asking for a co-counsel to help speed up the process, to not be setting up saying I’m using tactics to delay and this and that because certain things I don’t have access to [in jail].

The court informed Appellant that if he represented himself, he would have to do so “in the situation [he was] in.” Without asking Appellant whether he still desired to represent himself in the event that the court declined to appoint co-counsel, the court announced its finding that Appellant was competent to waive counsel, had done so knowingly and intelligently, and would be allowed to proceed pro se.

Immediately thereafter, Appellant expressed concern about whether he could competently represent himself. He summed up his position as follows:

[I]f I go to trial and I could have a co-counsel just to-just to-what I told the courts [t]hat I need, I would like to proceed pro se. If I can’t have a co-counsel, then I don’t need to be pro se because it will kill the whole issue and I know I wouldn’t be able to stand up and do it on my own because I wouldn’t know what to do on certain parts….

The court indicated its understanding of Appellant’s position, stating, “Now, he’s telling me if I’m not going to appoint co-counsel he does not want to represent himself.” However, the court found that the instant case was similar to Wheeler v. State, 839 So. 2d 770 (Fla. 4th DCA 2003), where the Fourth District held that a court was not required to grant an equivocal request for reappointment of counsel. The trial court in the instant case noted that Appellant had already answered the

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Faretta inquiry and had stated many times that he did not trust the Public Defender’s Office or want to be represented by it. For these reasons, the court “decline[d] [Appellant's] request to appoint co-counsel.”

Appellant informed the court, “I’m asking if I can’t have co-counsel, can I go ahead and get the Public Defender’s Office because I wouldn’t know how to proceed through trial.” The court found that Appellant was “flip-flopping” and, accordingly, denied his request for appointment of counsel. Appellant told the court that he could not “proceed through trial on [his] own.” The court responded, “You’ve already told me that you could and that you wanted to.” Appellant explained that he told the court that he could proceed through trial “with a cocounsel.” The court disagreed, pointing out that none of the Faretta questions referenced co-counsel. Appellant requested to withdraw his motion to represent himself, and this request was denied.

Before jury selection began on April 13, 2009, the trial court initiated another Faretta inquiry, reviewing the questions that had been posed at the pretrial hearing and asking whether Appellant still understood. Appellant asked whether this inquiry was being conducted because he still had a choice between counsel and self-representation, or whether he was simply supposed to answer the questions because the court was posing them. The court replied, “Well, you’re supposed to answer them regardless, whatever the answer is.” At the end of the inquiry, the

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court asked Appellant for his decision regarding whether he wanted to have an attorney appointed. Appellant replied as follows:

Once again, I will state that if I could have a co-counsel, I would like to remain pro se, and if I cannot have a co-counsel, due to the parts of the trial that I am not familiarized with or competent in handling, I would ask for a PD back. My reason for co-counsel is just for the parts that I don’t know.

The court found that Appellant’s behavior was “willy-nilly,” that he was not entitled to co-counsel, and that he was attempting to manipulate the proceedings. The case proceeded to jury selection and the remainder of the trial without an additional offer of counsel. Appellant was convicted on all counts, and he proceeded to sentencing with an attorney from the Public Defender’s Office.

A trial court’s “decision as to self-representation” is reviewed for abuse of discretion. Holland v. State, 773 So. 2d 1065, 1069 (Fla. 2000). Additionally, courts have observed that a court’s ruling on a defendant’s demand for self-representation “turns primarily on an assessment of demeanor and credibility,” such that “its decision is entitled to great weight and will be affirmed on review if supported by competent substantial evidence.” Morgan v. State, 991 So. 2d 984, 987 (Fla. 4th DCA 2008) (quoting Potts v. State, 718 So. 2d 757, 759 (Fla. 1998)).

In Faretta v. California, 422 U.S. 806, 819-20 (1975), the Supreme Court recognized the Sixth Amendment right to self-representation. However, because defendants who represent themselves “relinquish[]… many of the traditional

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benefits associated with the right to counsel,” the Faretta Court held that the decision to forgo appointed counsel must be made knowingly, intelligently, and with an awareness of the “dangers and disadvantages of self-representation.” Id. If a trial court finds that a defendant has properly invoked the right to selfrepresentation, it may appoint “standby counsel,” but is not required to do so.² Jones v. State, 449 So. 2d 253, 258 (Fla. 1984).

The rights to counsel and to self-representation are both recognized in the “Counsel Clause” of Article I, Section 16(a) of the Florida Constitution. See Traylor v. State, 596 So. 2d 957, 966-67 (Fla. 1992). Like federal law, Florida law requires that the waiver of the right to counsel in favor of self-representation be “knowing, intelligent, and voluntary.” Id. at 968. Additionally, both Florida and federal law “will indulge every reasonable presumption against waiver of th[e] fundamental right” to counsel. Id.

In Traylor v. State, the Florida Supreme Court held a criminal defendant “is

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entitled to decide at each crucial stage of the proceedings whether he or she requires the assistance of counsel.” 596 So. 2d at 968. In view of this right, the Traylor court further held that “[a]t the commencement of each such stage, an unrepresented defendant must be informed of the right to counsel and the consequences of waiver.” Id. Additionally, the Traylor court held that “[w]here the right to counsel has been properly waived, the State may proceed with the stage in issue; but the waiver applies only to the present stage and must be renewed at each subsequent crucial stage where the defendant is unrepresented.” Id. A “crucial stage” is one “that may significantly affect the outcome of the proceedings.” Id.

The Traylor holding mirrors Florida Rule of Criminal Procedure 3.111(d)(5), which provides that “[i]f a waiver [of counsel] is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.” Thus, both Traylor and Rule 3.111(d)(5) indicate that a defendant may change his mind about self-representation at the beginning of any crucial stage of a criminal prosecution. See Stinnett v. State, 576 So. 2d 927, 928-29 (Fla. 5th DCA 1991) (observing that a trial court incorrectly advised a defendant in stating that if the defendant elected self-representation at a suppression hearing, he could not change his mind and be represented at trial); Cf Horton v. Dugger, 895 F.2d 714, 716 (11th Cir. 1990) (indicating that, under federal law, “[t]he functional right of a

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defendant to withdraw his request to represent himself and reassert the right to counsel at any time immediately before, or perhaps even during trial, is, absent deliberate manipulation, virtually assured”).

Despite the option for a criminal defendant to change his mind about selfrepresentation, the Florida Supreme Court has observed that it is “implicit in Faretta that the right to appointed counsel, like the obverse right to selfrepresentation, is not a license to abuse the dignity of the court or to frustrate orderly proceedings, and a defendant may not manipulate the proceedings by willy-nilly leaping back and forth between the choices.” Jones v. State, 449 So. 2d 253, 259 (Fla. 1984). Such behavior was found in Jones v. State, where the defendant requested that his first attorney be discharged and began representing himself with the assistance of standby counsel, whom he later requested be discharged. 449 So. 2d at 256. Although the trial court refused to discharge standby counsel, it did appoint a second attorney to act as additional standby counsel, and the defendant refused to cooperate with this attorney as well. Id. at 257. On the second day of trial, after the State had begun its case, the defendant requested the reappointment of counsel. Id. The trial court denied this request. Id. During the sentencing phase of the trial, the defendant requested funds to obtain private counsel, asserting that all of the appointed attorneys were incompetent. Id. The trial court denied the defendant’s improper request and did not renew the offer

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of appointed counsel. Id. The Florida Supreme Court approved the trial court’s decisions in Jones, noting the defendant’s “contumacious behavior.” Id. at 257-58.

In Langon v. State, 791 So. 2d 1105 (Fla. 4th DCA 1999), the Fourth District applied the Jones court’s admonition against “willy-nilly leaping back and forth.” Over the course of three years, there were six different lead attorneys appointed for the Langon defendant’s case. See 791 So. 2d at 1106-09. Four of these attorneys either withdrew or were discharged due to conflicts with the defendant and the defendant’s refusal to cooperate in the preparation of his defense. See id. at 1106-09. On more than one occasion, the trial court found that the defendant was manipulating the system and warned him to stop. Id. at 1108-09. With both the last and the next-to-last appointments of attorneys, the court informed Appellant that if he refused to cooperate in the preparation of his defense, the case would proceed to trial anyway. Id. at 1108. The last attorney who represented the defendant filed a motion to withdraw, informing the court that the defendant wished to represent himself so that he could have more time in the law library. Id. The court observed that the defendant was “one of the most manipulative defendants or litigants that [it] had ever experienced,” but it granted the motion, warning the defendant that he would not be allowed to change his mind and have counsel appointed. Id. On appeal, the Langon defendant argued that the trial court erred in failing to renew the offer of counsel at each crucial stage of the

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proceedings. 791 So. 2d at 1112. The appellate court rejected this argument, noting that to reverse under the circumstances would “exalt form over substance” because the trial court had repeatedly warned the defendant that the offer of counsel would not continue to be extended and the defendant had manipulated the proceedings. See id at 1113.

In Wheeler v. State, 839 So. 2d 770, 774 (Fla. 4th DCA 2003), which the State argues is analogous to the instant case, the Fourth District identified another circumstance under which a trial court would not be required to appoint counsel after a defendant has begun self-representation: where the request is equivocal. In Wheeler, the court conducted a thorough Faretta inquiry, had the defendant sign a written waiver of her right to counsel, and appointed standby counsel. Id. at 771-72. At a separate hearing “[s]ome time later,” the defendant requested additional assistance from standby counsel, but it was unclear whether she was simply requesting help from standby counsel or whether she wanted counsel appointed. See id. On appeal, the Wheeler defendant argued that the trial court should have appointed counsel. Id. The Fourth District disagreed, concluding that, “having the best vantage point to assess the situation,” the trial court correctly determined that the defendant had not directly requested counsel. Id.

Essentially, the Wheeler court opined that the equivocal nature of the defendant’s request for reappointment of counsel rendered it unreviewable because

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an alternative view would allow defendants to make equivocal requests and then win a reversal on appeal no matter which way the trial court ruled; on one hand, the denial of an equivocal request could be considered the denial of the right to counsel, while on the other, the granting of such a request could be considered the denial of the right to self-representation. See 839 So. 2d at 774. The court noted that “[s]uch ‘heads I win, tails you lose’ tactics” should be rejected. Id. Based on these considerations, the Wheeler court held that the trial court acted within its discretion in not re-appointing counsel. Id.

Here, Appellant argues that the trial court abused its discretion in denying his request for reappointment of counsel at the pretrial hearing and again at jury selection. The record supports his position.

Unlike the defendant in Wheeler, Appellant unequivocally requested that the court reappoint counsel. Although Appellant stated at the April 9, 2009, hearing that he wanted to represent himself and that he did not trust the Public Defender’s Office, he unequivocally changed his mind when it became clear that the trial court would not appoint co-counsel. Although the trial court considered the issue of cocounsel a separate matter from the issue of self-representation, Appellant made clear over the course of the hearing that the two issues were related from his perspective; he wanted to represent himself if he could have co-counsel, and he wanted to be represented if he could not have co-counsel. If Appellant’s position

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was unclear before the court found that he had waived the right to counsel, it became clear immediately afterwards when he expressed that he did not feel competent to represent himself without the assistance of co-counsel, when he asked to withdraw the motion to represent himself, and when he reiterated his concerns at jury selection, specifically asking “for a PD back” in response to the court’s Faretta inquiry. Because both Traylor and Rule 3.111(d)(5) indicate that a defendant is entitled to change his mind concerning self-representation, the trial court should have allowed him to do so.

The limitation on a defendant’s right to reclaim the right to counsel should not have been applied here because the record does not support a finding that the decision to invoke the right was made “willy-nilly,” manipulatively, or unreasonably. Unlike in Jones and Langon, there is no indication in the instant record that Appellant constantly changed his mind about whether to be represented during a single stage of the proceedings or that he attempted to invoke the right to counsel mid-trial. Instead, the record indicates that when the case was reversed and remanded, Appellant decided to represent himself and maintained that request from that time until the pretrial hearing, a year and a half later. Even the prosecutor’s arguments at the pretrial hearing reflect this consistency in Appellant’s position. Although the case was continued more than once while Appellant represented himself, these continuances were not for the purpose of allowing an attorney to

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become acquainted with the case. Additionally, although the State attempted to use Appellant’s first successful appeal against Appellant, it does not appear that the error in that case was caused by manipulation on Appellant’s part; otherwise, this Court would not have reversed. Based on these factors, the instant case is distinguishable from Langon and Jones.

Under the facts of the instant case, the trial court should have indulged the reasonable presumption in favor of Appellant’s right to counsel and appointed an attorney. See Traylor, 596 So. 2d at 968. Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED.

PADOVANO, J., CONCURS, and DAVIS, J., CONCURS IN RESULT.

——–

Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, for Appellant.

Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.

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An appeal from the Circuit Court for Escambia County. Terry D. Terrell, Judge.

MARSTILLER, J.

James William Hayes, Jr., seeks reversal of his convictions and sentences for robbery with a weapon, false imprisonment with a weapon or firearm, and petit theft. He asserts the trial court erred by (1) denying one of his peremptory challenges to a prospective juror, and (2) allowing the state to introduce

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inadmissible hearsay in the form of a rent receipt found in Mr. Hayes’s home and testimony from a law enforcement officer identifying Mr. Hayes’s wife. We affirm as to the hearsay issue without further comment. We also affirm the court’s denial of the peremptory challenge, finding it not clearly erroneous for the reasons explained below.

In the criminal proceedings against Mr. Hayes, the prosecutor inquired during voir dire whether prospective jurors had any relationships with law enforcement officers that would cause them to be “biased towards law enforcement.”

MR. GORDON [prosecutor]: Ms. Kortuess. PERSPECTIVE [sic] JUROR: My brother is a police officer but in another state.

MR. GORDON: And would the fact that your brother is a police officer cause you to be biased?

PERSPECTIVE [sic] JUROR: No, sir.

MR. GORDON: Okay. Ms. Haupt.

PERSPECTIVE [sic] JUROR: I have two family members in law enforcement, but they’re out of state.

MR. GORDON: Okay. And would any of those relationships cause you any undue biased towards, law enforcement?

PERSPECTIVE [sic] JUROR: No, sir.

MR. GORDON: Let’s see, Ms. Rich.

PERSPECTIVE [sic] JUROR: My granddaughter.

MR. GORDON: Your granddaughter is in law enforcement?

PERSPECTIVE [sic] JUROR: Yes.

MR. GORDON: And would that fact cause you to place any special credibility towards law enforcement officers?

PERSPECTIVE [sic] JUROR: Not at all.

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When voir dire concluded, Mr. Hayes used two peremptory challenges. The court advised him he had the right to exercise up to ten such challenges, but Mr. Hayes indicated to the court he was satisfied with the jury.

Then, after the court recited the names of the six jurors and one alternate selected, of which five were women and two were men, the state and the defense each struck a juror, eliminating one man and one woman. When defense counsel attempted to also peremptorily strike prospective juror Haupt, a woman, the following exchange occurred:

MR. GORDON [prosecutor]: Your Honor, is it out of line if the State requests a gender neutral reason?

MR. PFEIFFER [defense counsel]: A what?

MR. GORDON: A gender neutral reason for using a strike against this female.

THE COURT: Counsel?

MR. PFEIFFER: I don’t have a gender neutral reason. She has some relatives or whatnot in law enforcement. She really didn’t answer many questions, at all. She didn’t say much of anything. To me, she’s somewhat of an unknown quantity.

THE COURT: Counsel, anything else?

MR. PFEIFFER: Nothing.

MR. GORDON: Your Honor, she did indicate that she knew law enforcement officers, but she indicated affirmatively that that would have no bearing on her potential as a juror.

THE COURT: All right. Counsel, while you’ve identified, we talked about-and I’m not sure that it applies as to a gender neutral reason to strike a potential juror in this manner. She did indicate she knew two law enforcement officers, but it created no problem for her. Otherwise, she had no other comments relating to this case….

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MR. GORDON [prosecutor]: Your Honor, not to be difficult, but to go back to the gender neutral reason. If we strike that juror, the next juror in line was a woman, anyway. So it wouldn’t change the gender makeup of the jury.

THE COURT: I’m aware of that, but each juror has the right to serve at their own right.

MR. GORDON: What?

THE COURT: I’m aware of that, but each juror has the right to serve, at their own right, absent a sufficient basis to exclude them.

The following day, before the jury was sworn, defense counsel revisited the issue:

MR. PFEIFFER:… I’m going to renew my objection about the Court’s denial of my attempt to strike the juror during jury selection after the State asked for a gender neutral reason. Do you want to go ahead and address that?

THE COURT: Your issue is preserved-well, I should say-let me rephrase that. Your issue was raised during the jury selection process, so.

MR. PFEIFFER: Right. I actually wanted to revisit that process because I don’t believe that we followed the right procedure in that situation.

THE COURT: All right.

MR. PFEIFFER: There is a case called State versus Melbourne, 679 So. 2d 759. It lays out a three-step procedure for dealing with that situation. I don’t think we quite followed it so I just wanted to clarify it. Step one-step one of the procedure is that we-that the State make a timely objection, which he did, so we go to the second step. The second step is that I have to present a facially gender neutral reason for the strike. The case law says that a reason is gender neutral on its face if the reason does not involve gender, and then the Court has to rule on whether or not my reason was gender neutral in the face. I don’t recall the Court did that or not.

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THE COURT: I concluded that your reason was not genuine under the circumstances, which presumes that it was gender-or excuse me, a gender neutral reason-explanation. Now that does not address your client’s issue about wanting other people, but on the basis that was stated as the general ground, that’s presumed in that-going to the next step.

MR. PFEIFFER: Okay, and step three was as you stated. If the Court finds the reason is gender neutral, then the Court has to decide if it was pretext or genuine based on all the circumstances. And I just want to reiterate that that-I think my reason was gender neutral because the juror that I had stricken before that was a female, the one that was going to come under the jury act after my strike would have been a female, and I think the next ten jurors were all females. So I don’t see how that could, with all due respect, possibly have been non gender neutral, or how could it then be pretensual (phonetic) on the basis of gender?

THE COURT: Do you have anything else?

MR. GORDON: Your Honor, the State would only put forward that all of these arguments were made at the bench at jury selection and the Court did make a ruling at that time.

THE COURT: Not all of them, but I’ve made my observations and rulings. They stand. Thank you.

Ultimately the jury, including one alternate, comprised six women and one man.

Florida’s three-step procedure for peremptory challenge objections is set out in Melbourne v. State, 679 So. 2d 759 (Fla. 1996). First, the objecting party makes a timely objection and requests that the court ask the striking party to provide a race-neutral¹ or gender-neutral² reason for striking the potential juror. Id. at 764.

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Next, the striking party gives an explanation for the peremptory strike. Id. If the reason given is facially race neutral or gender neutral, the court then determines whether, “given all the circumstances surrounding the strike, the explanation is not a pretext” for discrimination. Id. (footnote omitted). The question for the court is not whether the reason given for the strike is reasonable, but whether it is genuine. Id. Reasonableness is, however, pertinent to that assessment. Id. at 764 n. 9. Other relevant factors include the make-up of the venire and prior strikes against the racial or gender group of which the challenged juror is a member, as well as whether the explanation given for the challenge is equally applicable to other jurors who were not challenged. Id. at 764 n.8. Peremptory challenges are presumed to be nondiscriminatory. Id. at 764. But trial courts have broad discretion in judging whether such challenges are proper. See Franqui v. State, 699 So. 2d 1332, 1334-35 (Fla. 1997). “[T]he trial court’s decision turns primarily on an assessment of credibility” and will not be disturbed on appeal “unless clearly erroneous.” Melbourne., 679 So. 2d at 764-65.

Here the first two steps in the Melbourne procedure were followed: the prosecutor requested a gender-neutral reason for the peremptory strike of juror Haupt, and defense counsel offered an explanation which satisfied the court as being gender neutral. See Rojas v. State, 790 So. 2d 1219, 1221 (Fla. 3d DCA 2001) (holding that reason given for peremptory strike-proposed juror’s husband

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was a law enforcement officer-was gender neutral). It is the third step in the process-the court’s assessment of the genuineness of the reason given for the strike-with which Mr. Hayes takes issue.

The state has confessed error on this issue. “A confession of error, however, is not binding upon an appellate court, and it is the practice of Florida appellate courts not to accept erroneous concessions by the state.” Perry v. State, 808 So. 2d 268, 268 (Fla. 1st DCA 2002) (citations omitted). As the reviewing court, we are mindful that the trial court’s decision is primarily a question of credibility, and the genuineness determination takes into account “all the circumstances surrounding the strike.” See Melbourne, 679 So. 2d at 764. Judging a party’s credibility “is solely within the purview of the finder of fact.” Rojas, 790 So. 2d at 1220 (quoting Pringle v. State, 792 So. 2d 533, 535 (Fla. 3d DCA 2001)). Mr. Hayes argues-and the state agrees-the record does not support the court’s finding that defense counsel’s gender-neutral reason was a pretext. Indeed, as Mr. Hayes points out, the gender make up of the jury would have been unchanged if juror Haupt were removed. But as the Florida Supreme Court stated in Abshire v. State, 642 So. 2d 542 (Fla. 1994):

The fact that several women were seated as jurors is of no moment, for as we have previously said “number alone is not dispositive, nor even the fact that a member of the minority in question has been seated as a juror or alternate.” State v. Slappy, 522 So. 2d 18, 21 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909

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(1988); see also [State v.] Johans, 613 So. 2d at 1321 (“A [gender-neutral] justification for a peremptory challenge cannot be inferred merely from circumstances such as the composition of the venire or the jurors ultimately seated.”).

Id. at 544-45.

We cannot definitively say the trial court’s ruling is clearly erroneous and wholly unsupported by the record. The transcript of voir dire reveals nothing about the jurors the defense successfully removed by peremptory challenge prior to the attempted strike of juror Haupt. Thus Mr. Hayes cannot demonstrate, for example, the prior strikes included few or no women. But the transcript does show defense counsel’s initial response to the request for a gender-neutral justification for removing juror Haupt was “I don’t have a gender-neutral reason.” And although counsel recovered with “She has some relatives or whatnot in law enforcement,” two other individuals with family in law enforcement remained on the jury. These circumstances, together with the court’s assessment of defense counsel’s credibility (which we are not in a position to second guess) tend to support the denial of the peremptory challenge. Because we see no clear error here, we are constrained to uphold the lower court’s ruling.

AFFIRMED.

ROWE, J., CONCURS; KAHN, J., DISSENTS WITH OPINION.

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KAHN, J., dissenting.

I find the Attorney General’s confession of error on the jury selection issue both highly professional and highly perceptive. This case turns on the issue of “genuineness” of defense counsel’s gender-neutral reason for the attempted peremptory strike. Defense counsel’s concern about the prospective juror’s familial relationship with law enforcement officers has been explicitly upheld as gender-neutral. See Rojas v. State, 790 So. 2d 1219, 1221 n.2 (Fla. 3d DCA 2001). As a practical matter, I can scarcely envision a situation where a defense lawyer might not, at a gut level, whether justified or not, feel concern about defending a person accused of a serious felony before a jury comprised, even in part, of members with close relationships with law enforcement officers. As we well know, the focus in step three of the analysis under Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996), is “not on the reasonableness of the explanation, but rather its genuineness.”

I acknowledge that the majority has correctly recited the case law stating the trial court’s decision in these instances involves primarily a question of credibility. Nevertheless, I believe that, under the present facts, a determination of genuineness is subject to a largely objective standard, one that I would find clearly satisfied in the present circumstance. Moreover, deference to the learned trial judge’s determination of pretext seems to me to be an invitation to arbitrary results in these

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types of cases. I say this because, until this decision, most criminal lawyers, both for the prosecution and the defense, believed that a prospective juror’s relationship with law enforcement officers would certainly be an important consideration in determining whether that juror would remain on the panel for a criminal case.

Finally, I am not impressed by defense counsel’s initial response to the request for a gender-neutral justification. As the majority notes, counsel said, “I don’t have a gender neutral reason.” My review of the transcript suggests that this statement more or less came out because defense counsel was completely surprised by the prosecution’s objection, and, most likely, had never even considered in his own mind that he was focusing on the gender of the prospective witness, rather than upon her relationship with the law enforcement officers.

For these reasons, I respectfully dissent and would reverse the conviction under review and remand the case for a new trial.

——–

James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

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

Appeal from the Circuit Court for Pinellas County; Jack Day, Judge.

SILBERMAN, Judge.

M.A.R., a juvenile, seeks review of the trial court’s order adjudicating him delinquent, placing him on probation, and suspending his driver’s license based on his admission to the offense of fleeing or eluding. M.A.R. argues that the trial court erred in

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determining that the mandatory sentencing provisions of sections 316.1935(5) and (6), Florida Statutes (2008), apply to juveniles. Because sections 316.1935(5) and (6) do not contain a clear legislative mandate that they apply to juvenile proceedings, the court erred in determining that it was required to adjudicate M.A.R. delinquent and suspend his driver’s license under these provisions.

Prior to entering his plea to the charge in this case, M.A.R. had filed motions asking the court to issue an order finding that an adjudication of delinquency and driver’s license revocation were not required under sections 316.1935(5) and (6). M.A.R. argued that these adult sanctions were not applicable to juveniles. The court held a hearing on the motions and issued an order denying relief. The court thereafter imposed sanctions including an adjudication of delinquency and suspension of M.A.R.’s driver’s license.

The issue on appeal is whether the mandatory sentencing provisions in sections 316.1935(5) and (6) apply to juveniles. Sections 316.1935(1)-(4) make it a crime to commit the offenses of fleeing or eluding a law enforcement officer and aggravated fleeing or eluding. Subsections (5) and (6) provide as follows:

(5) The court shall revoke, for a period not less than 1 year nor exceeding 5 years, the driver’s license of any operator of a motor vehicle convicted of a violation of subsection (1), subsection (2), subsection (3), or subsection (4).

(6) Notwithstanding s. 948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section. A person convicted and sentenced to a mandatory minimum term of incarceration under paragraph (3)(b) or paragraph (4)(b) is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency or conditional medical release under s. 947.149, prior to serving the mandatory minimum sentence.

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We review the court’s construction of these statutes de novo. Polite v. State, 973 So. 2d 1107, 1111 (Fla. 2007).

“[T]he legislature has created a juvenile justice system as a totally separate and distinct rehabilitative alternative to the punitive criminal justice system, and not as a subset of that system with all of its attendant punitive measures and costs.” V.K.E. v. State, 934 So. 2d 1276, 1278 (Fla. 2006). Thus, adult sanctions are not applicable to juvenile proceedings unless the legislature makes them expressly applicable. Id. at 1282. The resolution of this question will therefore turn upon “whether there is a clear legislative mandate to have sections” 316.1935(5) and (6) apply to juvenile proceedings. See T.L.S. v. State, 949 So. 2d 290, 292 (Fla. 5th DCA 2007).

In this case, no such mandate appears. Section 316.1935(5) applies to defendants “convicted of a violation of subsection (1), subsection (2), subsection (3), or subsection (4).” However, juveniles who have been adjudicated delinquent are not “convicted.” See § 985.35(6), Fla. Stat. (2008); State v. N.P., 913 So. 2d 1, 2 (Fla. 2d DCA 2005); D.A. v. State, 11 So. 3d 423, 423 (Fla. 4th DCA 2009). Thus, the mandatory sentencing provision of section 316.1935(5) does not apply. Compare N.P., 913 So. 2d at 2 (holding that section 806.13(6)(a), Florida Statutes (2003), does not apply to juveniles because it provides for the imposition of a fine “only on those individuals who have been ‘convicted’ ” and “juveniles are not deemed to be ‘convicted’ “); with State v. K.R.G., 12 So. 3d 1269, 1269 (Fla. 2d DCA 2009) (applying to juvenile proceedings section 322.056(1)(a)(1), Florida Statutes (2007), which requires revocation of the driver’s license of a person under 18 years of age who is found guilty of or delinquent for certain crimes).

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We reject the State’s argument that, under section 322.01(11)(a), Florida Statutes (2008), an adjudication of delinquency constitutes a “conviction.” Section 322.01(11)(a) provides as follows:

“Conviction” means a conviction of an offense relating to the operation of motor vehicles on highways which is a violation of this chapter or any other such law of this state or any other state, including an admission or determination of a noncriminal traffic infraction pursuant to s. 318.14, or a judicial disposition of an offense committed under any federal law substantially conforming to the aforesaid state statutory provisions.

The State’s argument is not persuasive for two reasons. First, section 322.01(11)(a) expressly applies to the use of the term in chapter 322, not chapter 316. Chapter 322 is entitled “Drivers’ Licenses,” and section 322.01 sets forth definitions “[a]s used in this chapter.” In fact, the legislature has clearly explained that adjudications of delinquency do not constitute convictions “[e]xcept as the term ‘conviction’ is used in chapter 322″ and except for use in subsequent proceedings under chapter 985. § 985.35(6). Second, section 322.01(11)(a) does not contain a clear legislative mandate that it apply to juvenile proceedings.

As for section 316.1935(6), we recognize it is not limited to defendants “convicted” of particular violations. However, section 316.1935(6) likewise does not contain a clear legislative mandate that it apply to juvenile proceedings. Subsection 316.1935(6) states, in pertinent part, that “no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section.” It does not reference juveniles or adjudications of delinquency or withholds of adjudication of delinquency. Furthermore, juvenile courts do not “suspend, defer, or withhold adjudication of guilt”; they adjudicate or withhold delinquency. See § 985.35(4)-(6);

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State v. Menuto, 912 So. 2d 603, 607 (Fla. 2d DCA 2005) (“[T]he juvenile justice system does not recognize the concept of ‘guilt.’ “).

The State’s reliance on State v. A.B., 725 So. 2d 1263 (Fla. 4th DCA 1999), is misplaced. The court in A.B. interpreted a statute that provided for sentencing of a minor found to have committed an offense involving the use or possession of a firearm. See id at 1263 n.1. In determining that this juvenile statute permitted a withhold of adjudication of delinquency, the court explained that it did not expressly preclude a withhold of adjudication of delinquency. Seeid.. at 1263. The court contrasted the juvenile statute with its “adult counterpart,” which expressly precluded a withhold of adjudication of guilt. Seeid.A.B. did not concern the issue of whether the adult sanction applied to the juvenile. Thus, the court’s reference to the provision allowing a withhold of adjudication of guilt in the adult sanction was not for the purposes of determining that the adult sanction contained a clear legislative mandate that it applied to juvenile proceedings.

For these reasons, the trial court erred in determining that the mandatory sentencing provisions of sections 316.1935(5) and (6) apply to juveniles. Because the trial court was clearly under the impression that these adult sanctions were mandatory, we reverse and remand for reconsideration of the disposition.

Reversed and remanded.

WHATLEY and BLACK, JJ., Concur.

William Dreyer, pro se.

Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.

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

Appeal from the Circuit Court for Pinellas County; Dee Anna Farnell and Bruce Boyer, Judges.

MORRIS, Judge.

William Dreyer appeals his conviction and sentence for exploitation of the elderly, as well as an order and judgment requiring him to pay restitution in the amount of $31,570. We affirm Dreyer’s conviction and sentence without comment, but we

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reverse the order and judgment of restitution because the only evidence supporting the amount of restitution was hearsay evidence.

“When the amount of restitution is in dispute, as in this case, the state has the burden of demonstrating by a preponderance of the evidence the amount of the victim’s loss.” Thomas v. State, 581 So. 2d 992, 993 (Fla. 2d DCA 1991). When a defendant objects to hearsay evidence at a restitution hearing, the hearsay evidence is inadmissible to prove the amount of restitution. See Moore v. State, 694 So. 2d 836, 837 (Fla. 2d DCA 1997); Thomas, 581 So. 2d at 993. It is improper for a witness to offer hearsay testimony regarding determinations of value that the witness received from other people. See Atkins v. State, 728 So. 2d 288, 289 (Fla. 2d DCA 1999).

Here the State presented the testimony of Detective Adams to establish the amount of money Dreyer stole from the victim. However, Detective Adams did not have personal knowledge of that amount; rather, she received that information from employees of the victim’s financial institutions and from financial statements from those institutions. Because Dreyer objected to Detective Adams’ testimony on the basis of hearsay, it was improperly admitted.

In addition, the State introduced into evidence, over Dreyer’s objection, the financial statements to show the amount stolen from the victim. Detective Adams was the only witness for the State, and she did not have the requisite knowledge to establish the proper foundation for the admission of the financial statements under the business records exception to the hearsay rule. See § 90.803(6)(a), Fla. Stat. (2008); Medlock v. State, 537 So. 2d 1030, 1031 (Fla. 2d DCA 1988) (“[Section 90.803(6)(a)] clearly require[s] the records custodian or other qualified person employed by the bank to

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testify regarding the necessary predicate before the bank statement could be admitted into evidence. Without that foundation, the evidence is inadmissible as hearsay.” (citing Dietz v. State, 534 So. 2d 808 (Fla. 2d DCA 1988))). Therefore, the trial court erred in admitting the financial statements without the proper foundation laid by qualified employees of the financial institutions.

The State contends that Detective Adams’ testimony that Dreyer admitted stealing money from the victim was sufficient to establish the amount of restitution. However, Detective Adams testified that Dreyer admitted stealing “a slightly lower amount” than that reported to Detective Adams during her investigation. Therefore, Dreyer’s admission was not sufficient to establish the amount of restitution ordered by the trial court.

Because the only evidence establishing the amount of restitution was improper hearsay evidence, we reverse the order and judgment of restitution and remand for a new hearing to determine the amount of restitution.

Affirmed in part; reversed in part; remanded.

DAVIS and CRENSHAW, JJ., Concur.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

Polen, J.

Appellant, Jarvis Hicks, appeals his conviction for attempted first degree murder with a firearm. He argues that the trial court failed to conduct a Richardson¹ hearing upon learning that the State had failed to provide appellant written notice of the substance of his statement to Detective Foster, and failed to identify Foster as a witness to this statement, until the day of trial. We find that the State did not commit a discovery violation by failing to provide appellant with written notice of the substance of his statement. However, we agree with appellant that the State’s failure to identify Detective Foster as a “rebuttal to alibi witness” until the day of trial was a discovery violation. We reverse and remand for a new trial because the trial court did not conduct an adequate Richardson inquiry on the discovery violation, and we cannot conclude that the error was harmless.

The charge arose following a drive-by shooting incident. Witnesses Otis Ramsey and Jesse Ulcena (the victim), testified at trial. Ramsey knew of appellant from a youth football league. He admitted he had previously identified appellant as the shooter, but explained that he was only sixteen years old at the time, and was part of a group being interviewed by the police all at once. Someone in the group said, “I think it was Jarvis [appellant],” and Ramsey agreed. At trial, Ramsey insisted he did not know the shooter, and that he told this to the investigating police officer.

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Ulcena said the car was within a few feet of him when he saw a hand emerge from the window holding a revolver. Ulcena then saw the face of the gunman, who wore his hair in a “twists” hairstyle. The area was illuminated by a street light. Just as he saw the gun, Ulcena heard a single gunshot, turned and ran away. Two more gunshots fired. When Ulcena looked back, he saw the shooter’s face as the gun re-fired. When Ulcena went to run again, he felt a sharp pain in his back, causing him to fall to the ground.

Ulcena acknowledged in his prior deposition testimony that he did not run or see the face of the shooter until the third shot fired. He also conceded that, while he testified at trial that the gun was chrome in color, in deposition he said he could not see the gun clearly because it was dark out.

Ulcena identified appellant from a photographic lineup, and at trial. Ulcena was 100 percent certain that appellant was the shooter. He had never seen appellant before the incident. At the time of the incident, appellant had “twists” in his hair; at trial, he did not. Ulcena also identified the driver of the vehicle as a man known as “T-Black,” but conceded this identification turned out to be erroneous.

In its discovery compliance submitted in November of 2006, the State advised that it had within its possession “Statements of defendant,” including oral statements to police officers.

Appellant filed a notice of alibi in June 2007, and served his initial witness list, which consisted of Brett Smith, Jr., Tymelle Jones and Jermaine Paul. He asserted that, at the time of the shooting, he was at a little league football game in Boynton Beach with the listed witnesses.

The State deposed Brett Smith, Jr. in July of 2007. Smith, Jr. testified that appellant was with him the entire evening in question, and into the next day. Smith, Jr. stated that his parents, other family members and friends (including appellant) traveled in a caravan of vehicles from Deerfield Beach to Boynton Beach to attend the little league football game of Smith, Jr.’s younger brother. Smith, Jr. drove a car that his aunt, Susan Young, had rented. Appellant rode with him. Upon their return to Deerfield Beach, between 10:30 and 11:00 p.m., they went directly to the Smith residence, where appellant participated in a video football game tournament, and stayed the night.

On September 27, 2007, the State filed supplemental discovery, submitting the following: “All documents, statements, police reports,

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Miranda forms, Defendant interview on DVD, and evidence related to case DR-O6-4980. Additional witnesses: All defense witnesses; Brett Smith, Jr., Tymelle Jones, Jermaine Paul, Brett Smith, Sr., and Stephanie Young.” The State did not include Detective Foster in this submission.

However, six months later, on March 24, 2008, the first day of trial, the State filed additional supplemental discovery, listing Detective Foster as a witness.

At the beginning of trial, the State discussed its supplemental discovery filing:

[Prosecutor]: Your Honor, just–I just want to make sure that all of the supplemental discovery has been received. And we have an alibi witness in this case, and that alibi witness was supplied to the State and in response the State filed supplemental discovery and the witnesses on the supplemental discovery are all of the Defense witnesses, [as well as] Detective… Foster from Broward Sheriffs Office.

Also we have supplied the Defense with the entire file related to case number DR064980, and I just want that to be on the record.

…

It was a shooting case prior to the shooting in this case that the defendant was involved in. And I just want to confirm for the record that [defense counsel] has received all of that. It was sent back in… September ’07….

THE COURT: Okay.

[Defense counsel]: And, Judge, I did receive that though I’m not sure what the State’s intention is with regards to that case.

[Prosecutor]: I don’t know until the Defense puts on their case, Your Honor…. I have no intention unless there is-

[Defense counsel]: So there was no Williams Rule motion filed or anything like that, so-

[Prosecutor]: No, there was no Williams Rule or anything like that

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THE COURT: Okay.

[Prosecutor]: Unless-

THE COURT: We’ll deal with it if it comes up—

(Emphasis added.)

In opening statements, the defense argued that: (1) at the time the crime was committed, appellant was attending a little league football game in Boynton Beach with the Smith family; and (2) that State witnesses Ulcena and Ramsey were not credible.

After the State rested its case, the defense presented three alibi witnesses: Brett Smith, Sr., Brett Smith, Jr., and Susan Young (Smith, Jr.’s aunt). All of the alibi witnesses testified that appellant drove to and from the football game with Smith, Jr., in Young’s rented vehicle, and that, after the game, appellant spent the evening at the Smith home playing video games. Smith, Jr. said that he and appellant returned to the Smith house between 10:30 and 11:00 p.m., after Smith, Jr.’s parents. Smith, Sr. said that all of the cars arrived home at about the same time. Young testified that the group traveled to and from the game together, and stayed at the game until it was over.

After the defense rested its case, the State called Detective Foster as a rebuttal witness. Defense counsel requested a sidebar, and the following dialogue ensued:

[Defense counsel]: The State’s calling a rebuttal witness of a witness that I received in supplemental discovery yesterday; is that correct?

[Prosecutor]:… you received the witness yesterday, but the DVD of the police report was provided six months ago. Seven, 7 months ago.

[Defense counsel]: What is the rebuttal witness–I have not talked to this witness. I don’t know what the State’s planning to call-

[Prosecutor]: He’s just going to introduce the defendant’s statement?

[Defense counsel]: What defendant statement? What statement? With regard to this case?

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[Prosecutor]: With regard to this case?

[Defense counsel]: Okay.

[Prosecutor]: With regards to this case and where he was that night.

[Defense counsel]: Judge, the discovery–I received no statement.

[Prosecutor]: The actual discovery said the Miranda form, the Defendant’s statement, all of the police reports related to that case were supplied to you, and I gave you the DVD.

[Defense counsel]: I believed that was a DVD from the prior case.

[Prosecutor]: It is.

[Defense counsel]: Not on this case?

[Prosecutor]: They’re–he talked about this case during the DVD.

[Defense counsel]: Judge, I received a DVD from a prior case. According to the discovery I received there is no statement in this case.

THE COURT: Okay. Show me where you have listed the statement?

[Prosecutor]: I actually read it out loud September 27, 2007, all documents, the police report, Miranda forms, defendant interview on DVD, and evidence related to Case Number DR064980.

[Defense counsel]: Judge, I haven’t had an opportunity to review the statement before introduced…. Judge, a DVD I [have] never seen. It appears to me it was a statement that it was connected to another case. Apparently… this was an interview given directly attributed to a different case, not in this case.

THE COURT: On September 27th did you give that discovery on this case with this case number?

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[Prosecutor]: Yes, with this case number. And I gave the entire DVD, the police report and everything else. And we talked about it.

[Defense counsel]: I got this the day before yesterday.

[Prosecutor]: No, you got this September 27 of 2007.

Upon defense counsel’s request, the relevant portion of the DVD of appellant’s interview with Detective Foster (from the prior, unrelated case) was played outside the jury’s presence. During the interview, appellant contradicted the testimony of his own alibi witnesses in the instant case, stating that he left the game earlier than everyone else; that he rode to the game with Brett Smith, Jr.’s parents and daughter, in “Brett’s mom’s car”; and that he returned to the Smith home a little after midnight, before Smith, Jr.

The State advised that what was played was a redacted portion of the two hour long DVD, the rest of which pertained to other cases. When the defense advised he was not aware of this portion of the statement, the prosecutor asserted: “That’s because it’s two hours into the statement, and it’s only four or five minutes long.” Defense counsel argued: “That’s the problem.” Defense counsel requested a Richardson hearing without objection from the State.

At this time, the court stated that it was conducting a Richardson hearing. Again, the State advised that its supplemental discovery submission dated September 27, 2007, provided the defense with “[a]ll documents, statements, police reports, Miranda forms, defendant interviews on DVD, and evidence related to DR064980.” The court then clarified: “The 9/27/07 supplemental discovery is on this case, and it references the DVD on the ’06 case.” (Emphasis added.) Defense counsel then advised:

Judge, there were two cases involved in which [appellant] was arrested on. Now, I believed what the State was offering earlier–because I have asked. I asked the deputy in deposition, during deposition, are there any statements given by [appellant] with regards to this case?

He answered, no. It’s in the deposition. What they were–what the State is offering over was what I thought to be potential… Williams Rule hearings with regards to this case. Not a statement that was directly attributed to this case. And according to the lead

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detective, who the State didn’t even call, there was no statement with regards to this case.

The trial court found there was no discovery violation, stating:

[B]y way of supplemental discovery that bears a certificate of service of September 27th, ’07, the Defense in this case was provided with notice that the State would intend to use a DVD on the other ’06 case where the defendant gave a statement. So the Court finds that there is no discovery violation.

Defense counsel unsuccessfully moved for a mistrial.

The State’s rebuttal witness, Detective Foster, testified that he interviewed appellant a week after the shooting. Appellant told the detective he had been at a youth football game that night. Over appellant’s renewed objection, the trial court admitted the excerpt of the DVD pertaining to the case at bar, and it was played for the jury. Thereafter, Foster testified that it was clear from appellant’s statement, that he did not travel to and from the game with Smith, Jr.

During closing, the prosecutor argued that appellant’s statement “completely contradicts all three alibi witnesses. So, the conclusion about the alibi witnesses is that they’re lying, and they’re lying for a reason.” Defense counsel maintained that the case boiled down to mistaken identity, noting that the victim’s recollections were based on only a split second of observations. The defense also maintained that the photographic lineup was suggestive, where only one of the males depicted had a “twists” hairstyle. As for the alibi defense, appellant was left to argue that, while there were inconsistencies, all witnesses were consistent with regards to appellant’s whereabouts on the night of the incident. In rebuttal, the prosecutor reminded the jury to watch the DVD and listen to the inconsistencies between appellant and his alibi witnesses.

Appellant alleges that the trial court erred in denying the defense motion for a Richardson inquiry where (1) the State failed to provide the defense with specific written notice of the substance of appellant’s statement made to Detective Foster; and (2) the State failed to identify Foster as a witness to this particular statement until the day of trial. Appellant claims the State’s conduct violated both the letter of rule 3.220(b)(1) and the spirit of the law concerning the rules of discovery.

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The State responds that no discovery violation occurred, and thus, a Richardson hearing was unnecessary; that the trial court did hold a sufficient Richardson inquiry; the court did not err in finding the State did not commit a discovery violation; and finally, error if any was harmless.

We find that the State did not commit a discovery violation by failing to provide the defense with the substance of appellant’s statement to Detective Foster. Rule 3.220(b)(1)(C) requires the State to disclose “any written or recorded statements and the substance of any oral statements made by the defendant….” As we recently held in Durrance v. State, No. 4D08-2498 (Fla. 4th DCA Sept. 22, 2010), “[t]he state, having disclosed the existence of the prior… testimony, was not required to provide the substance of the written or recorded testimony, nor was it required to do the defense’s job by pointing out exactly which parts of the… testimony that it intended to use.”

However, we find that the State committed a discovery violation when it failed to identify Detective Foster as a witness to this particular statement until the day of trial. Rule 3.220(b)(1)(A)(i) requires the State to disclose “a list of the names and addresses of… ‘rebuttal to alibi witnesses.’” Again, in its supplemental discovery submitted on September 27, 2007, the State provided: “All documents, statements, police reports, Miranda forms, Defendant interview on DVD, and evidence related to case DR-O6-4980. Additional witnesses: All defense witnesses; Brett Smith, Jr., Tymelle Jones, Jermaine Paul, Brett Smith, Sr., and Stephanie Young.” The State, however, did not list Detective Foster as a witness. The State must have known of Detective Foster’s identity at that time because they presumably reviewed the DVD which showed him interviewing appellant in the other case. The State cannot argue that the defense should have discovered Detective Foster’s identity when the State had the affirmative duty to disclose his identity as a “rebuttal to alibi witness.”

Particularly telling was the prosecutor’s statement to the trial court and defense counsel that she did not know what her intention was with respect to the statement “until the Defense puts on their case.” We find this claim highly suspect. When the State tendered the DVD of appellant’s statement to the defense in September of 2007, it had already deposed Smith, Jr., whose deposition testimony concerning appellant’s alibi contradicted appellant’s statements. Furthermore, the State was well aware at the time of trial that appellant would be presenting an alibi defense through the testimony of the three Smith family witnesses.

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Once a trial court has notice of a possible discovery violation, the court must conduct a Richardson hearing to inquire about the circumstances surrounding the State’s violation of the discovery rules and examine the possible prejudice to the defendant. Smith v. State, 7 So. 3d 473, 505 (Fla. 2009). Here, the trial court stated that it was conducting a Richardson hearing. However, the court only inquired whether the State committed a discovery violation by failing to provide the defense with the substance of appellant’s statement to Detective Foster. The court did not inquire whether the State committed a discovery violation when it failed to identify Detective Foster as a “rebuttal to alibi witness.” As a result, the court did not conduct an adequate inquiry into the three requisite factors: “(1) whether the discovery violation was willful or inadvertent; (2) whether it was trivial or substantial; and (3) whether it had a prejudicial effect on the opposing party’s trial preparation.” McDuffie v. State, 970 So. 2d 312, 321 (Fla. 2007).

A discovery violation is harmless error only if the appellate court can determine beyond a reasonable doubt that the error did not procedurally prejudice appellant. Cox v. State, 819 So. 2d 713 (Fla. 2002). In Cox, the supreme court described the State’s burden in asserting that a discovery violation was harmless:

[W]here the State commits a discovery violation, the standard for deeming the violation harmless is extraordinarily high. A defendant is presumed to be procedurally prejudiced “if there is a reasonable probability that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred.” Pomeranz v. State, 703 So. 2d 465, 468 (Fla. 1997) (quoting State v. Schopp, 653 So. 2d 1016, 1020 (Fla. 1995)). Indeed, “only if the appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.” Id.

Id. at 712.

The record does not reflect that the error is harmless. The defense proceeded on two theories: alibi and mistaken identity. Appellant’s statements to Detective Foster in the prior case significantly contradict the testimony of all three of his alibi witnesses in this case. Thus, had the defense known of Foster and that he would be testifying that he had elicited that prior statement, it is highly unlikely that appellant would have advanced an alibi defense. Instead, appellant could have defended the charge on the basis of misidentification.

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Because we cannot say beyond a reasonable doubt that appellant did not suffer procedural prejudice from the discovery violation, we reverse and remand for a new trial.

Reversed and Remanded for a New Trial.

Gerber and Levine, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

——–

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

Warner, J.

Appellant, George Durrance, challenges his conviction for first degree murder. He maintains that the trial court erred in failing to conduct an appropriate Richardson¹ hearing when the state notified the court during trial that it might seek to introduce portions of his testimony in an unrelated trial. We hold that no discovery violation occurred, because the state had filed a supplemental discovery disclosure which specifically included his testimony in the unrelated case. Moreover, even if it were a violation, no procedural prejudice is apparent, as the state never used the testimony from the prior trial.

Durrance was charged in 2007 with first degree murder in the shooting death of Michael Schmedes in February 1999, which occurred during the course of a cocaine deal. The evidence presented at trial² showed that in 1999, Durrance was a major cocaine dealer in the Jacksonville area. His main supplier was located in Miami. The victim was a drug dealer based in West Palm Beach, whom Durrance used as a “backup supplier.”

On the date of the murder, Durrance travelled to West Palm Beach with his right-hand man, Floyd Gibbs. It is undisputed that Durrance

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met the victim at a hotel room within a short time after the victim checked in. The victim was in possession of a large amount of cocaine, which he had obtained from his supplier.

Around an hour after Durrance checked into the hotel, the hotel manager and clerk heard shots. They came running out of the office to see the victim walk up to the front door of the lobby, slump over and fall to the ground. Realizing that the victim had been shot, they called 911. When the hotel manager asked the victim who shot him, he responded that he didn’t know. In response to further questioning, he also stated something to the effect that, “I can’t believe they did this.” Shortly thereafter, paramedics transported the victim to the hospital where he died. Evidence gathered at the scene included a blue towel with Floyd Gibbs’s DNA on it, as well as that of Durrance’s wife. Durrance’s fingerprints were found on a keycard for the room.

At trial, the state’s theory was that Durrance had planned to rob the victim of the cocaine and that either Durrance or Floyd Gibbs, working on behalf of Durrance, killed him during the course of the robbery. The state presented multiple witnesses to support this theory. Gary Bradstreet, who was regularly hired by Durrance to transport him back to Jacksonville when he purchased drugs in South Florida, testified that Durrance told him that he had shot the “big hillbilly dude” in the hotel, but later confided to Bradstreet that Gibbs had shot him and he was simply taking responsibility to calm Gibbs down. Several of the other witnesses, who were already in prison for sale of cocaine or other serious charges, testified that Durrance admitted to murdering the victim in West Palm Beach. Both Bradstreet and the other prisoner witnesses were all providing testimony with the desire to get favorable treatment either for themselves or another family member.

In his defense, Durrance provided a different account of the shooting. Durrance testified that he was present at the hotel for the drug transaction, but Floyd Gibbs was not present. While he was conducting the transaction with Schmedes, two masked gunmen entered the room demanding the drugs and the money. A struggle ensued between the victim and the masked men. Durrance claimed that he didn’t remember seeing the victim get shot, but he heard a gunshot and then ran outside the room. Durrance then hid between some cars. While hiding, Durrance saw that the victim had been shot and was walking towards the lobby of the hotel. A few seconds later, he saw the two masked robbers leave the hotel room and jump into a big black truck. Durrance testified that he recognized the truck from a prior meeting with a drug dealer named “Steve,” whom he had used before as one of his cocaine

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suppliers. Durrance suspected that Steve was behind the robbery. Durrance then got into his vehicle and picked up Floyd Gibbs, telling Floyd only that “things didn’t go right.” He made arrangements for Bradstreet, his regular driver, to pick him up. He did not tell Bradstreet about the robbery, just that things “went wrong.”

The jury found Durrance guilty of first degree murder, a lesser included offense of first degree murder with a firearm. The trial court imposed the mandatory sentence of life without parole.

Durrance raises a single issue on appeal, claiming that the state committed a discovery violation by failing to provide prior to trial a transcript of his testimony as a witness in another unrelated case which the prosecutor determined that she might use at trial for impeachment purposes. Because the state properly disclosed the trial testimony, we conclude that no discovery violation occurred. In any event, the testimony from the prior trial was never used, and no procedural prejudice has been shown.

Five months prior to the trial of this case, the state filed a supplemental discovery response, listing Durrance’s trial testimony as a witness in a 2007 murder case. It did not provide him with a copy of the transcript of his testimony during that trial, although it did provide him with a transcript of his deposition in the 2007 case, which the prosecutor maintained was identical to his trial testimony. On the fifth day of Durrance’s trial, the prosecutor handed to defense counsel the trial transcript of Durrance’s 2007 testimony. Counsel objected to this late production and argued that the state had committed a discovery violation by failing to produce the transcript. The prosecutor maintained that no discovery violation occurred, because she had disclosed the trial testimony to the defense. The prosecutor wanted to use only two sentences from Durrance’s prior testimony for impeachment purposes. In his prior testimony, Durrance admitted that he would do anything to get out of prison, and that he would even lie under oath. The state wanted to be able to use that prior testimony for impeachment purposes if Durrance were to testify that he would never lie under oath. The prosecutor also explained that she did not know Durrance would be testifying until trial began, and she did not believe the state would pay for a transcript unless she would actually use it. The court concluded that no discovery violation occurred.

When a defendant elects to participate in the discovery process, Florida Rule of Criminal Procedure 3.220(b)(1) requires the state to “disclose to the defendant and permit the defendant to inspect, copy,

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test, and photograph the following information and material within the state’s possession or control:… (C) any written or recorded statements and the substance of any oral statements made by the defendant As was its obligation pursuant to the rule, the state notified the defendant of the existence of defendant’s trial testimony in a prior case. In B.T.G. v. State, 694 So. 2d 767 (Fla. 1st DCA 1997), the court held that a witness’s statement made in proceedings in open court was not within the possession or control of the state. Thus, the court reasoned that the state had no obligation to disclose it. We would not go that far. We conclude that the state had the duty to disclose the trial testimony of the defendant. The trial testimony is a written or recorded statement of the defendant. It is recorded by a court reporter or by audio recording, and when requested, it is transcribed into a written text. Here, the state fulfilled its obligation under the rule by disclosing the trial testimony in its supplemental response to defendant’s request for discovery. The defendant has the burden of inspecting and copying the trial testimony. See State v. Williams, 678 So. 2d 1356, 1357-58 (Fla. 3rd DCA 1996) (holding that rule 3.220(b)(1) requires the prosecutor to produce documents for inspection and copying, but it is defendant’s burden to bear the expense of copying documents). Durrance could have, but did not, request to copy or inspect the transcript. The trial court found that there was no discovery violation, and we agree. The state, having disclosed the existence of the prior trial testimony, was not required to provide the substance of the written or recorded testimony, nor was it required to do the defense’s job by pointing out exactly which parts of the trial testimony that it intended to use.

Moreover, even if the state committed a discovery violation by failing to produce the transcript prior to the start of trial, we would find the trial court’s failure to conduct a complete Richardson hearing to be harmless beyond a reasonable doubt, because the state never used any of the prior trial testimony. Where a discovery violation has occurred, the failure to conduct a Richardson hearing is not per se reversible error, but rather is subject to a harmless error analysis. See State v. Schopp, 653 So. 2d 1016, 1020-21 (Fla. 1995). The relevant inquiry is “whether there is a reasonable possibility that the discovery violation ‘materially hindered the defendant’s trial preparation or strategy.’” Scipio v. State, 928 So. 2d 1138, 1150 (Fla. 2006) (quoting Schopp, 653 So. 2d at 1020). An analysis of procedural prejudice “considers how the defense might have responded had it known about the undisclosed piece of evidence and contemplates the possibility that the defense could have acted to counter the harmful effects of the discovery violation.” Scipio, 928 So. 2d at 1149.

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Durrance does not explain how he was procedurally prejudiced by the late review of Durrance’s testimony in the prior trial. His testimony in that case was not relevant to any substantive fact in his own trial, but rather would have been used only for impeachment purposes if Durrance were to testify that he would never lie under oath. Thus, the undisclosed statement would not have caused him to pursue a different theory of defense. His theory of defense was that two unknown masked men, presumably working for the drug dealer named “Steve,” entered the hotel room during the drug deal, stole the cocaine, and murdered the victim.

During the state’s cross-examination of Durrance, the state never impeached him with his testimony in the prior case. Durrance candidly admitted, both in his own trial and in the unrelated trial, that he might lie under oath to get out of prison. Thus, the state never had any reason to impeach Durrance with his prior testimony. He does not claim on appeal that he would have declined to testify or that his testimony would have been any different had the alleged discovery violation never occurred. The lack of procedural prejudice to the defense from the failure to provide a copy of the trial transcript at an earlier time is an additional reason for affirming Durrance’s conviction.

Affirmed.

Gross, C.J., and Fishman, Jane D., Associate Judge, concur.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Roger B. Colton, Judge; L.T.

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William Douglas, Bristol, pro se.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

Per Curiam.

William Douglas appeals the summary denial of his timely motion for postconviction relief. Fla. R. Crim. P. 3.850. On September 30, 2003, Douglas entered a plea to dealing in stolen property and was placed on probation for a term of three years. On November 26, 2003, the State filed an affidavit alleging that Douglas violated probation by committing a new offense-an October 20, 2003 armed robbery of a cellular-phone store-and by failing to file required monthly reports.

At the January 31, 2005, violation of probation (VOP) hearing, the state presented testimony from a detective who investigated the robbery. The detective had received information from a source that Douglas committed the robbery. The source did not testify at the hearing and the basis for the source’s alleged knowledge of the identity of the robber is unclear from the record. The detective prepared a photo lineup and showed it to four witnesses to the robbery. Two of the witnesses positively identified Douglas. An employee of the store, who was held at gun point and had considerable interaction with the robber, testified at the VOP hearing that he identified Douglas from the photo lineup.

Douglas admitted he had not filed the required reports for the one remaining day in September 2003, since he had been placed on probation on September 30, 2003, or for October 2003. No other witnesses or evidence of the robbery was presented at the VOP hearing.

The trial court found that the state had proven these violations, revoked probation, and sentenced Douglas to the statutory maximum of

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fifteen years in prison. On appeal, Douglas argued error in the denial of his motion to suppress because the photo lineup was unduly suggestive as he was the only one with a goatee, his hair was shorter than the others, and he was the only one with his mouth slightly ajar which revealed a gold tooth. This court affirmed. Douglas v. State, 926 So. 2d 1288 (Fla. 4th DCA 2006).

Subsequent to the VOP, Douglas went to trial for the armed robbery, and the jury found him not guilty. At trial, the defense adduced evidence that was not considered at the VOP hearing and which attacked the reliability of the store employee’s identification and tended to show Douglas may not have committed the robbery. According to Douglas’s postconviction motion, the store employee testified at trial that the robber wore a tank-top shirt, that the employee clearly viewed the robber’s arms, and that the robber did not have any tattoos. The employee testified that he remembered the robber had some gold teeth and that he held the gun with his right hand. The employee testified that the robber touched a glass display case and areas around the front door with his bare hands.

At trial, defense counsel presented evidence that, at the time of the robbery, Douglas had numerous and highly-visible tattoos on both arms which were present and documented before the October 20, 2003 robbery. Douglas alleges that he is left handed and had no gold teeth.¹ Douglas exhibited the tattoos on his arms and his lack of gold teeth to the jury. None of the fingerprints lifted from the glass display case and from areas around the front door, where the store employee indicated the robber placed his bare hands, matched Douglas. The jury found Douglas not guilty of robbery.

In this postconviction motion, Douglas seeks a new VOP hearing and asks that the judge reconsider the sentence in light of the alleged “newlydiscovered” evidence which was adduced at the trial. The trial court summarily denied the motion adopting and attaching the State’s response which erroneously argued that Douglas was attempting to raise a procedurally-barred claim of trial court error.

The State argued alternatively that the evidence at the VOP hearing was sufficient to prove that Douglas committed the robbery and that the jury’s subsequent acquittal did not prohibit revocation of probation. The

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State did not refute, or contest, Douglas’s account of the alleged newly discovered evidence adduced at the jury trial for the robbery.

The law is well-settled that, because different standards of proof apply, a violation of probation can be based on criminal conduct for which a defendant is subsequently acquitted by a jury. Louis v. State, 797 So. 2d 1281 (Fla. 4th DCA 2001); Morris v. State, 727 So. 2d 975 (Fla. 5th DCA 1999). In a jury trial, the State must prove the offense beyond a reasonable doubt, whereas in a VOP proceeding, the State need merely prove the violation by a greater weight of the evidence. Morris, 727 So. 2d at 977.

Douglas’s claim, however, relates to the weight of the evidence and the fairness and reliability of the outcome of his VOP proceeding, not to the sufficiency of the evidence to support revocation. Douglas’s subsequent acquittal for the robbery does not necessarily prevent the State from meeting its burden of proving a VOP. But, the fact that evidence was sufficient to support a VOP does not preclude a claim that newlydiscovered evidence entitles Douglas to a new VOP hearing.

Evidence which develops after a VOP hearing can support a postconviction claim of newly discovered evidence, and a defendant can be entitled to new VOP hearing when the new evidence would probably produce a different result. See, e.g., Stallworth v. State, 21 So. 3d 84 (Fla. 1st DCA 2009) (holding that defendant should receive an evidentiary hearing on his postconviction claim that his wife’s recantation at trial of testimony she had given at the VOP hearing was newly discovered evidence); Hall v. State, 855 So. 2d 249 (Fla. 3d DCA 2003) (granting postconviction relief and reversing and remanding for a new VOP hearing where a police officer, subsequent to the VOP hearing, gave inconsistent deposition testimony which suggested that VOP was improper). Cf. Humbert v. State, 933 So. 2d 726 (Fla. 2d DCA 2006) (remanding for new VOP hearing where conviction which formed the sole basis for revocation was reversed on appeal); Maximo v. State, 745 So. 2d 1128 (Fla. 4th DCA 1999) (requiring new VOP hearing, where revocation was based on two new offenses, and defendant had been acquitted after jury trial of one offense and second conviction was reversed on appeal).

To establish a claim of newly discovered evidence warranting a new VOP hearing, Douglas must show: (1) that the evidence was unknown by the trial court, by the party, or by counsel at the time of the VOP hearing and that neither the defendant, nor his counsel, could have discovered the evidence with the exercise of due diligence; and (2) that the newlydiscovered evidence is of such a nature that it would probably produce a

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different result in a new VOP hearing. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (setting out the standard for determining whether a newly discovered evidence claim merits a new trial); see also Robinson v. State, 770 So. 2d 1167, 1170 (Fla. 2000) (emphasizing that the proper prejudice standard for a newly discovered evidence claim is whether the newly discovered evidence “would probably produce an acquittal on retrial’) (emphasis added).

The record in this case is silent as to whether the favorable evidence produced in the jury trial of the robbery was known or discoverable at the time of the VOP hearing. Douglas alleges that the new evidence was not available at the time of the VOP hearing. The State in its response to this court’s order to show cause contends that Douglas’s claim was insufficiently pleaded because he did not allege that the favorable evidence could not have been discovered with due diligence. The State is correct. Fairness, however, requires that Douglas be afforded an opportunity to amend his claim to correct this deficiency if he can do so in good faith. See Spera v. State, 971 So. 2d 754, 761-62 (Fla. 2007).

We reverse and remand for the trial court to strike the claim and permit Douglas a reasonable amount of time to file an amended motion if he can do so in good faith. If Douglas files an amended, facially sufficient claim that the favorable evidence presented at his trial was newly discovered² and these allegations are not conclusively refuted by the record, and if the State opposes Douglas’s claim, then the trial court should hold an evidentiary hearing to determine whether new evidence entitles Douglas to a new VOP hearing as occurred in Hall.

Reversed and Remanded.

Warner, Stevenson and Levine, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T.

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Not final until disposition of timely filed motion for rehearing.

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Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

Gross, C.J.

The issue we address in this case is whether the trial judge abused his discretion in ruling that appellant failed to establish the unavailability of a witness under section 90.804, Florida Statutes (2008) so that the witness’s former testimony could be used at trial as an exception to the rule against hearsay. See § 90.802, Fla. Stat. (2008). Finding no abuse of discretion, we affirm.

The state charged Edgar Wilson with two counts of aggravated battery with a deadly weapon, alleging that he stabbed two people with a knife. After a jury trial, he was convicted of one count as charged and of misdemeanor battery. This court reversed the convictions and remanded for a new trial. Wilson v. State, 975 So. 2d 566 (Fla. 4th DCA 2008). At the second trial, Wilson was convicted of battery and aggravated battery and sentenced as a prison release reoffender. Wilson has now appealed from the sentence imposed after the second trial.

The charges arose from a street fight between two groups of people that started in the parking lot of a Kwik Stop. The stabbing victims claimed that Wilson’s group started the fight, with Wilson joining in and wielding a knife. Wilson’s group contended that the other group started the fight, so they acted in self defense. Wilson testified that one of the victims pulled a knife on him; during the ensuing struggle, Wilson grabbed the knife and used it in a “big fight with a lot of swinging.”

One of the men in Wilson’s group during the fight was Christopher Culligan. At the first trial, Wilson called him as a witness. For the

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second trial, Wilson told his lawyer that Culligan would appear when called. When the second trial was set on a trial docket, Culligan left town, visiting family in Tennessee for two weeks. The defense lawyer learned of Culligan’s absence during a court hearing. Due in large part to Culligan’s disappearance, the case was continued.

Wilson told his lawyer that Culligan was “not a problem” and that he did not need to use a subpoena to secure his attendance at trial. Wilson spoke to Culligan just before trial and made him aware of when the trial would start. However, several days into the second trial, defense counsel told the judge that Culligan was a missing witness. He tried to subpoena Culligan that same day.

The next day, defense counsel informed the judge that he could not find Culligan. During trial the defense tried to find Culligan. Wilson went to Culligan’s home, where someone told him that Culligan had lost his job and had taken off several days earlier. Wilson and his friends called around and tried to locate Culligan; they checked jails in several counties, but were unable to find him.

Defense counsel moved to admit the transcript of Culligan’s testimony given at Wilson’s first trial, arguing Culligan was unavailable, so the former testimony exception to the rule against hearsay applied. The state’s opposition to the motion focused on Wilson’s failure to subpoena the witness until the middle of the second trial.

The trial judge refused to admit Culligan’s former testimony, finding that “the defense has not made a sufficient showing that the defendant has been [unable] to procure the witness’s testimony, by process or other means.” The judge based the decision “on the totality of the circumstances and the evidence that has been presented, the credibility of the witnesses, [and] the timing of efforts that have been advanced here.”

Wilson argues that the trial judge erred in excluding Culligan’s former testimony under section 90.804(2)(a). All of the hearsay exceptions contained in section 90.804(2) require that the declarant be “unavailable as a witness.” While Culligan’s testimony from the first trial meets the requirements of “former testimony” under section 90.804(2)(a), for that testimony to be admissible, Culligan must also have been “unavailable” within the meaning of section 90.804(1)(e), which provides, in pertinent part:

90.804. Hearsay exceptions; declarant unavailable.

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(1) DEFINITION OF UNAVAILABILITY.—”Unavailability as a witness” means that the declarant:

(e) Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.

The party seeking the admission of a witness’s former testimony carries the burden of demonstrating the witness’s unavailability for trial, and that the party exercised due diligence in its attempt to procure the witness’s attendance or testimony. See Jackson v. State, 575 So. 2d 181, 187 (Fla. 1991); Outlaw v. State, 269 So. 2d 403, 404 (Fla. 4th DCA 1972). The trial judge’s determination of whether Wilson carried the burden of demonstrating Culligan’s unavailability is reviewed under an abuse of discretion standard. E.g., Outlaw, 269 So. 2d at 404 (“The responsibility for evaluating the adequacy of the showing of [unavailability] rests with the trial judge, and his determination of this issue will not be disturbed unless an abuse of discretion clearly appears.”).

This case falls between Essex v. State, 958 So. 2d 431 (Fla. 4th DCA 2007) and McClain v. State, 411 So. 2d 316 (Fla. 3d DCA 1982), two cases that considered the meaning of the “unavailability of a witness” within the context of the section 90.804(2)(a) former testimony exception to the rule against hearsay.

In Essex, we affirmed a trial court’s finding that the State had satisfied its burden of demonstrating a witness’s unavailability so that the witness’s testimony from the first trial of a defendant could be used at the second trial. The Essex defendant’s convictions had been reversed and the case remanded for a new trial. Id. at 432. The defendant’s 15-year-old niece testified at the first trial. Id. Before the second trial, investigators from the prosecutor’s office tried to locate the niece and a police department attempted to locate her at recent addresses; the state called all prior phone numbers associated with the niece, without any success. Id. The prosecutor explained that it had been five years since the first trial, and the niece was now a 20-year-old woman who likely did not own any property or cars. Id. We affirmed the trial court’s ruling that the state had satisfied its burden of demonstrating the niece’s unavailability, so that her former testimony could be read to the jury. Id.

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In contrast to Essex, McClain was a case where the court held a witness was not “unavailable,” so that the state should have been precluded from introducing his former testimony at a later trial. There, the husband of a victim testified at a defendant’s first trial, which ended in a mistrial. 411 So. 2d at 316 n.1. At the time of the second trial, the victim was in the hospital, and the husband wished to be at her bedside rather than in court to testify at the second trial. Id. at 316. Over objection, the state offered the husband’s former testimony in evidence. Id.

On appeal, the third district held that trial court erred in admitting the former testimony. Id. The court wrote, “[T]he mere reluctance of a witness to attend a trial—understandable or not—does not mean that the State is unable to procure his attendance.” Id. at 317. It continued, “Here the State, with full knowledge of the witness’ whereabouts, did nothing to procure his attendance.” Id. (footnotes omitted). In a footnote, the court noted “[t]he record does not reflect whether Daniel was subpoenaed,” “[b]ut if he was, the record clearly reflects that no effort was made by the State to have the subpoena enforced.” Id. Use of the court’s subpoena power was part of the due diligence that the third district required for the state to make a showing of the witness’s unavailability.

This case is closer to McClain than to Essex. Culligan was demonstrably unreliable as a witness. The second trial was continued because Culligan went to Tennessee. Thereafter, Wilson was on notice as to Culligan’s unreliability. Nonetheless, Wilson relied on the same oral promise that Culligan had broken before. Because such informal means had earlier failed to secure Culligan’s appearance, due diligence required Wilson to do something more than tell Culligan when the second trial would occur. Like the situation with the reluctant witness in McClain, due diligence in this case require that an unreliable Culligan be under subpoena for the second trial. We find no abuse of discretion in the trial judge’s ruling that Wilson failed to establish Culligan’s unavailability under section 90.804.

Affirmed.

Warner and Ciklin, JJ., concur.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Martin J. Bidwill, Judge; L.T.

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