State v. Schopp

We have for review Schopp v. State, 641 So.2d 141, (Fla. 4th DCA 1994), which presents the question of whether a trial court’s failure to conduct adequate inquiry into alleged discovery violations under this Court’s decision in Richardson v. State, 246 So.2d 771 (Fla.1971), should continue to be treated as per se reversible error. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution.

NOTICE OF VOLUNTARY DISMISSAL

Before we address the certified question, we must address Schopp’s contention that this Court lacks jurisdiction because he filed a notice of voluntary dismissal in the district court prior to the final disposition of his appeal. The decision under review was issued on July 6,1994. Sehopp filed a timely motion for rehearing and the State filed a timely petition for review in this Court. While the motion for rehearing was pending in the district court, Sehopp filed a notice of voluntary dismissal pursuant to Florida Rule of Appellate Procedure 9.350(b). The State filed a motion to strike the notice. On August 1,1994, Sehopp sought a writ of mandamus from this Court compelling the district court to dismiss the appeal. On August 15, the district court denied the motion for rehearing and granted the State’s motion to strike the notice. Then, on September 1, Sehopp filed a motion to dismiss the State’s petition for review alleging that this Court lacks subject matter jurisdiction because he filed his notice of voluntary dismissal before the district court’s decision became final. This Court denied both the petition for writ of mandamus and the motion to dismiss.

Florida Rule of Appellate Procedure 9.350(b) provides in pertinent part:

A proceeding of an appellant or petitioner may be dismissed before a decision on the merits by filing a notice of dismissal with the clerk of the court....

Sehopp argues that since his notice of voluntary dismissal was filed before the district court’s decision became final, his appeal had to be dismissed as a matter of right; and therefore there is no decision for this Court to review.

We agree with Sehopp that his notice of dismissal was timely filed under rule 9.350(b) because there was no “decision on the merits” until the district court disposed of his motion for rehearing. See Fla.R.App.P. 9.020(g)(1) (a decision is not rendered for appellate purposes until disposition of motion for rehearing); Cf. Haverley v. Clann, 196 So.2d 38 (Fla. 2d DCA 1967) (notice of dismissal due to settlement would have been timely filed under rule providing for the filing of such notice “before a decision on the merits” if notice had been filed prior to resolution of motion for rehearing). However, the fact that the notice was timely filed does not end our analysis. Even where a notice of voluntary dismissal is timely filed, a reviewing court has discretion to retain jurisdiction and proceed with the appeal. Cf. Ervin v. Capital Weekly Post, 97 So.2d 464 (Fla.1957) (this Court retained jurisdiction to consider issue of public importance where appellees sought dismissal prior to initial decision); Phibro Resources Corp. v. Department of Environmental Regulation, 579 So.2d 118 (Fla. 1st DCA) (district court retained jurisdiction where case had been settled while motions for rehearing were pending and notices of voluntary dismissal had been filed prior to decision on rehearing), cause dismissed, 592 So.2d 679 (Fla.1991). This is particularly true where, as here, the ease presents a question of public importance and substantial judicial labor has been expended as evidenced by the issuance of an initial opinion. Accordingly, it was within the district court’s discretion to retain jurisdiction and refuse to withdraw its opinion certifying the question of public importance to this Court.

CERTIFIED QUESTION

Next, we turn to the certified question which arises in the following context. Eric Sehopp was charged with armed burglary and grand theft, but was convicted of the lesser included offenses of burglary and petit theft. At trial, the State sought to call the responding officer as a witness. Defense counsel objected because the officer was not on the State’s original witness list. The prosecutor acknowledged that the officer inadvertently had been omitted from the original list but stated that the officer’s name had been added to an amended list given defense counsel shortly before trial. The prosecutor told the court that the officer was going to testify to information contained in a report that had been supplied to the defense during pretrial discovery. The trial court overruled the objection and refused to continue the inquiry into the violation in light of the fact that Sehopp had filed a demand for speedy trial. The court concluded that under the circumstances a Richardson hearing was not required; thus, no inquiry was made into whether the defense was prejudiced by the violation and no consideration was given to sanctions that might have averted any prejudice.

On appeal, the district court felt compelled to reverse by this Court’s decision in Smith v. State, 500 So.2d 125 (Fla.1986), which held the failure to conduct a Richardson hearing per se reversible error. The district court reversed despite the fact that it was “absolutely convinced that the admission of the testimony of the undisclosed witness and the failure to conduct a Richardson inquiry were harmless,” under the harmless error analysis set out in State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Schopp v. State, 641 So.2d at 142.

The district court considered the following facts in finding the error harmless: 1) the undisclosed witness presented testimony that was known to the defendant, was cumulative to other testimony, and concerned facts openly admitted by the defendant; 2) defense counsel admitted during opening statement that Sehopp committed the offenses of which he was ultimately convicted; and 3) Sehopp was acquitted of the charged offenses and thus “won” his case. 641 So.2d at 142. Pointing to our discussion of the harmless error analysis in DiGuilio, the district court suggests that we reconsider our decision in Smith. Id.

In Smith, we were asked to consider whether a new trial is required when a trial court’s failure to conduct a Richardson hearing is found to be harmless by the reviewing court. We reiterated that the failure to make a Richardson inquiry must be considered per se reversible error because a reviewing court is in no position to determine from a cold record whether a discovery violation is harmless. See Wilcox v. State, 367 So.2d 1020, 1023 (Fla.1979); Cumbie v. State, 345 So.2d 1061, 1062 (Fla.1977). We reasoned that an appellate determination as to whether a Richardson violation is harmless is impossible in light of the fact that “[t]he purpose of a Richardson inquiry is to ferret out procedural, rather than substantive, prejudice.” 500 So.2d at 126 (quoting Wilcox, 367 So.2d at 1023.) We explained:

The certified question in [Smith] misapprehends the very purpose of a Richardson hearing, which is precisely to determine if a violation is, in fact, harmless. One cannot determine whether the state’s transgression of the discovery rules has prejudiced the defendant (or has been harmless) without giving the defendant the opportunity to speak to the question. We repeat what the court made clear in Wilcox. A reviewing court cannot determine whether the error is harmless without giving the defendant the opportunity to show prejudice or harm. 367 So.2d at 1023. In Wilcox, ... this Court explained that the question of “prejudice” in a discovery context is not dependent upon the potential impact of the undisclosed evidence on the fact finder but rather upon its impact on the defendant’s ability to prepare for trial[.]

500 So.2d at 126.

This distinction between substantive and procedural prejudice in the context of discovery violations continues to be a valid one. However, this case demonstrates that there are cases in which a reviewing court can determine that a discovery violation is harmless beyond a reasonable doubt, absent an adequate Richardson inquiry at the trial level. Here, we can say beyond a reasonable doubt that neither the discovery violation nor the trial court’s failure to inquire into whether corrective sanctions were warranted materially hindered the defendant’s trial preparation or strategy.

explained in DiGuilio that a de-dehas a constitutional right to a fair trial free of harmful error. This right has been recognized by the legislature in section 924.33, Florida Statutes (1993), which pro-prothat harmless error analysis is applica-applicato all judgments. While the courts may establish a rule of per se reversal for certain types of errors, a per se rule is appropriate only for those errors that always vitiate the right to a fair trial and therefore are always harmful. 491 So.2d at 1134-85. With this restriction in mind, we have never held that the failure to conduct a Richardson hearing always results in an unfair trial. Rather, we established the per se reversal rule based on our assumption that “no appellate court can be certain that errors of this type are harm-harmCumbie v. State, 345 So.2d 1061, 1062 (Fla.1977).

While in the vast majority of cases this assumption holds true, we now recognize that there are cases, such as this, where a reviewing court can say beyond a reasonable doubt that the defense was not prejudiced by the underlying violation and thus the failure to make adequate inquiry was harmless error. While this case is clearly the exception rather than the rule, it illustrates that a per se reversal rule is not warranted in this context. It also leads us to agree with the State that continued application of the per se reversal rule to all Richardson violations would have the effect of “elevating form over substance,” contrary to section 924.33. DiGuilio, 491 So.2d at 1135.

Application of a harmless error analysis in this context will result in reversal where the record will not support a finding that the unsanctioned discovery violation could not have materially hindered the defense. However, where, as here, the appellate court truly can rule the error harmless, there will be no need to order a new trial. Moreover, under a harmless error analysis any concern that “a reviewing court cannot determine whether the error is harmless without giving the defendant the opportunity to show prejudice,” Smith, 500 So.2d at 126, is dispelled by the fact it is the State’s burden to establish that the error is harmless. DiGuilio, 491 So.2d at 1138. Thus, if the record is insufficient for the appellate court to determine that the defense was not prejudiced by the discovery violation, the State has not met its burden and the error must be considered harmful.

In determining whether a Richardson violation is harmless, the appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefited the defendant. In making this determination every conceivable course of action must be considered. If the reviewing court finds that there is a reasonable possibility that the discovery violation prejudiced the defense or if the record is insufficient to determine that the defense was not materially affected, the error must be considered harmful. In other words, 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.

This analysis recognizes the procedural prejudice inherent in discovery violations. It also takes into account the fact that errors that reasonably could affect trial preparation or strategy are “prejudicial,” and therefore harmful for appellate purposes, only when a change in trial tactics reasonably could have benefited the defendant by resulting in a favorable verdict. '

We recognize that in the vast majority of cases it will be readily apparent that the record is insufficient to support a finding of harmless error. We also recognize that where the defendant’s trial preparation or strategy reasonably could have been affected by the discovery violation it will be difficult to determine whether the verdict could have differed had the violation not occurred or had the trial court acted to avert the prejudice. However, the mere fact that there is a high probability that a given error will be found harmful does not justify categorizing the error as per se reversible. DiGuilio, 491 So.2d at 1137. Thus, we recede from Smith, Cumbie, Wilcox, and their progeny to the extent that they require per se reversal, and we hold that the harmless error analysis set forth above should be applied where a trial court fails to conduct an adequate Richardson inquiry.

Our recognition that a Richardson violation can be harmless is not intended to minimize the need for compliance with the rules of discovery; nor is it intended to diminish the importance of a thorough inquiry into alleged discovery violations by the trial court. Application of harmless error analysis in this context in no way sanctions either discovery violations or the failure to conduct a Richardson hearing when such hearing is warranted. We have repeatedly stressed that possible prejudice resulting from discovery violations is best addressed and remedied at the trial level. See, e.g., Smith; Wilcox; Richardson. Not only is the trial court better equipped to deal with discovery violations, if the trial court determines that a party has been prejudiced by the violation there are numerous remedial sanctions that can be imposed at that stage of the proceedings. See Fla.R.Crim.P. 3.220(n)(1), (2). Trial courts should make every effort to adequately address alleged discovery violations because proper inquiry and corrective action by the trial court can eliminate the potential for reversal on appeal and thus avert the need for a new trial. We emphasize that the requirements set forth in Richardson and its progeny should be adhered to with the same conviction as they were when noncompliance resulted in per se reversal.

Because it is clear in this case that the State’s failure to include the officer on its original witness list could not have materially hindered the defense, the trial court’s failure to adequately inquire into what, if any, corrective measures should have been taken was harmless beyond a reasonable doubt. During discovery, defense counsel was given the police report, which was consistent with the officer’s testimony at trial. The challenged testimony was cumulative to other testimony, including that of the defendant. And, even if the officer had been listed as a witness and the defense had deposed him, there would have been nothing in the officer’s testimony that could have supported a strategy different from that taken — to admit that Schopp committed burglary but maintain that he was unarmed and did not know that he was stealing a firearm. Moreover, because Schopp effectively “won” his ease, there is no reasonable possibility that a change in trial tactics could have benefited him.

Accordingly, we quash the decision under review and remand for proceedings consistent with this opinion.

It is so ordered.

GRIMES, C.J., and SHAW and WELLS, JJ., concur.

HARDING, J., dissents with an opinion, in which OVERTON, J., concurs.

ANSTEAD, J., recused.

. The Fourth District Court of Appeal has certified the following question as being of great public importance:

SHOULD THE PER SE RULE OF SMITH [v. STATE, 500 So.2d 125 (FLA.1986)] BE RECONSIDERED IN LIGHT OF THE PRINCIPLES SET OUT IN [STATE v.] DIGUILIO [, 491 So.2d 1129 (FLA.1986)]?

Schopp v. State, 641 So.2d 141, 143 (Fla. 4th DCA 1994).

. We find no merit to the State's contention that the trial court conducted an adequate inquiry in this case. Even though there was inquiry as to the violation itself, there was no inquiry into the prejudice the violation may have caused the defense. Inquiry into the prejudicial effect of the violation is clearly required under Richardson. See Wilcox v. State, 367 So.2d 1020, 1022 (court must inquire as to whether the discovery violation was inadvertent or willful, whether the violation was trivial or substantial, and what effect the violation may have had on the defendant’s ability to prepare for trial).

. Section 924.33, Florida Statutes (1993), provides:

No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.

. Florida Rule of Criminal Procedure 3.220(n) provides in pertinent part:

(1) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order the party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.

(2) Willful violation by counsel of an applicable discovery rule, or an order issued pursuant thereto, shall subject counsel to appropriate sanctions by the court. The sanctions may include, but are not limited to, contempt proceedings against the attorney, as well as the assessment of costs incurred by the opposing party, when appropriate.