ERIC LUCAINE WARD

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

ERIC LUCAINE WARD,

Appellant,

v. Case No. 5D17-2441

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed April 5, 2019

Appeal from the Circuit Court for Orange County, Alicia L. Latimore, Judge.

James S. Purdy, Public Defender, and Ali

L.

Hansen, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Appellant, Eric Lucaine Ward, appeals his convictions on two counts of aggravated child abuse, in violation of section 827.03(1)(a) and (2), Florida Statutes (2015), following a jury trial. His only argument on appeal is that the trial court erred when it excluded a

A person commits aggravated child abuse when he or she:

1. Commits aggravated battery on a child;

2. Willfully tortures, maliciously punishes, or willfully and unlawfully cages a child; or

3. Knowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child.

§ 827.03(1)(a), Fla. Stat. (2015).

The State alleged that Appellant committed aggravated child abuse against his fifteen-year-old twin sons by violating section 827.03(1)(a)2. and 3. Appellant participated in discovery but did not turn over a witness list as required by Florida Rule of Criminal Procedure 3.220(d)(1)(A). At trial, after the State rested, Appellant sought to call a witness. The State objected, even though the witness appeared on its own witness list and had been deposed, arguing that it would be prejudiced because it would have called the witness in its case-in-chief had it known that Appellant planned to call her. In an effort to cure this alleged prejudice, Appellant suggested that the State reopen its case to call the witness. However, the State rejected this remedy, stating only that it “made a strategic decision about how to present” its case. In essence, the State argued that it was prejudiced because it would not have ended with the testimony of this witness—but failed to explain how calling the witness out of its intended order caused prejudice.

While a trial court may exclude a witness as a sanction for a discovery violation pursuant to Florida Rule of Criminal Procedure 3.220(n), the court must first conduct a Richardson1 hearing to determine if sanctions are necessary. However, the “trial court’s discretion can be properly exercised only after an adequate inquiry is made into three areas: (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) (citing Richardson, 246 So. 2d at 775); see also McBride v. State, 913 So. 2d 696, 698–99 (Fla. 1st DCA 2005). “Prejudice in this context means procedural prejudice materially affecting the opposing parties’ preparation for trial.” State v. Rolack, 104 So. 3d 1286, 1288 (Fla. 5th DCA 2013) (citing McDuffie, 970 So. 2d at 321; State v. Farley, 788 So. 2d 338, 339 n.2 (Fla. 5th DCA 2001)). Importantly, a defendant has a constitutional due process right to call witnesses. Dawson v. State, 20 So. 3d 1016, 1022 (Fla. 4th DCA 2009). Therefore, before excluding a defense witness, the trial court must also “consider a fourth factor and explore whether any other reasonable alternatives can be employed to overcome . . . possible prejudice, including the declaration of a mistrial.” Id. (citation and internal marks omitted).

1 Richardson v. State, 246 So. 2d 771 (Fla. 1971).

EVANDER, C.J., EISNAUGLE and HARRIS, JJ., concur.