PAUL BRISENO AND DANNY BRISENO, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Trial court erred in excluding alibi witness testimony solely for violation of notice of alibi rule without considering whether the State was prejudiced and whether alternative remedies existed.
A trial court must consider whether a discovery rule violation prejudiced the State and whether reasonable alternative remedies could remedy any disadvantage before excluding evidence.
[1] Exclusion of evidence for discovery rule violation requires trial court to consider whether the violation prejudiced the opposing party and whether alternative remedies c…
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Join FLexlaw to unlock all legal intelligence“whether it is the State that fails to comply with a discovery rule or the dereliction of responsibility by defense counsel, to prevent the placement of form over substance it is necessary for a trial judge in considering motions based on alleged discovery rule violations to determine more than the mere fact question of whether a discovery rule was violated”
Bradford v. State standard for discovery rule violations
Paul Briseno listed his daughter Vicky as a witness under Florida Rule of Criminal Procedure 3.220 but failed to provide notice of alibi under Rule 3.…
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COWART, Judge.
The trial court prohibited appellant Paul Briseno from calling his daughter Vicky as an alibi witness because, while she was listed as a witness under Florida Rule of Criminal Procedure 3.220, the State had not been notified under the notice of alibi rule, Florida Rule of Criminal Procedure 3.200. In Bradford v. State, 278 So. 2d 624 (Fla. 1973), the supreme court stated that whether it is the State that fails to comply with a discovery rule or the dereliction of responsibility by defense counsel, to prevent the placement of form over substance it is necessary for a trial judge in considering motions based on alleged discovery rule violations to determine more than the mere fact question of whether a discovery rule was violated.1
The record before us shows that the trial court excluded the testimony of an alibi witness because the notice of alibi rule had been violated by defense counsel. The trial court’s inquiry should have considered whether the discovery violation surprised the State in preparing for trial, and if so, whether reasonable means could have been employed to overcome such disadvantage without resorting to the drastic measure of excluding evidence. We reverse the conviction of appellant Paul Briseno and remand for a new trial of his case but affirm the conviction of appellant Danny Briseno because it has been represented to this court that Vicky would have presented alibi testimony as to Paul but not as to Danny.
AFFIRMED in part; REVERSED in part; and REMANDED.
ORFINGER, C.J., and DAVIS, S.J., Jr., Associate Judge, concur. . See also Richardson v. State, 246 So. 2d 771 (Fla.1971).
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Austin v. State, 461 So. 2d 1380 (Fla. 1st DCA 1984)…s determination of prejudice and absent any effort to employ reasonable means short of witness exclusion to overcome any such prejudice, we conclude that the trial court erred in ordering the exclusion of the subject witnesses. See Briseno v. State, 449 So. 2d 312 (Fla. 5th DCA 1984); Patterson v. State, 419 So. 2d 1120 (Fla. 4th DCA 1982); Slaughter v. State, 330 So. 2d 156 (Fla. 4th DCA 1976); Williams v. State, 264 So. 2d 106 (Fla. 4th DCA 1972); compare Lail v. State, 314 So. 2d 234 (Fla. 4th DCA 1975); a…
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O'Brien v. State, 454 So. 2d 675 (Fla. 5th DCA 1984)…t an adequate hearing to determine the cause and effect of the failure to disclose. Richardson v. State, 246 So. 2d 771 (Fla.1971); Neimeyer v. State, 378 So. 2d 818 (Fla. 2d DCA 1979); Bradford v. State, 278 So. 2d 624 (Fla.1973); Briseno v. State, 449 So. 2d 312 (Fla. 5th DCA 1984). Because the trial judge failed to conduct an adequate Richardson hearing we reverse the convictions and remand this matter for a new trial. For further guidance, we have examined the record and can see there was not enough preju…
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Fedd v. State, 461 So. 2d 1384 (Fla. 1st DCA 1984)…the witnesses were permitted to testify, nor did the trial court explore reasonable alternatives to the drastic remedy of exclusion, in an effort to mitigate any possible prejudice. We adopt the reasoning of the Fifth District in Briseno v. State, 449 So. 2d 312 (Fla. 5th DCA 1984), on this issue. In Briseno, as in this case, the trial court excluded the testimony of an alibi witness who had been listed as a witness for the defense. Since the state had not been notified of alibi pursuant to Rule 3.200, the…
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- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Bradford v. State, 278 So. 2d 624 (Fla. 1973)