        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         ANTHONY MCINTYRE,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D15-1230

                             [June 15, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No. 14-1483 CF10A.

   Carey Haughwout, Public Defender, and Jeffrey L. Anderson,
Assistant Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, C.J.

    Anthony McIntyre appeals his conviction for the lesser included
offense of attempted second-degree murder with a firearm. He raises
three issues on appeal, none of which we find have merit. However, we
write to address McIntyre’s contention that his alibi witness was
improperly excluded.

   After the state charged McIntyre with attempted first-degree murder,
the state filed its demand for notice of alibi, pursuant to Florida Rule of
Criminal Procedure 3.200.

   The case proceeded to trial upon McIntyre’s speedy trial demand.
After the victim testified, defense counsel inquired whether the state
would object to allowing McIntyre’s cousin, “Mr. Caesar,” to testify that
McIntyre was not at the crime scene but rather at his Broward County
apartment at the time of the offense. Defense counsel explained: “I
know it’s a late thing to do, but he has been talking to me about that on
the phone this morning and the phone late yesterday. Sorry I didn’t
bring it up sooner. He wants me to make a proffer about that.”
    The trial court observed that the parties were “halfway through the
trial,” and chided, “You can’t all of a sudden raise an alibi defense for the
first time in the middle of trial when the state has already given opening
statement and the defense has already given their opening statement.”

   On appeal, McIntyre argues the court erred in excluding his witness
without first conducting an inquiry and exploring alternatives to
exclusion. “A trial court’s exclusion of alibi witnesses under rule 3.200 is
subject to review for abuse of discretion.” Martin v. State, 41 So. 3d
1100, 1101 (Fla. 4th DCA 2010).

   Florida Rule of Criminal Procedure 3.200 provides the following in
pertinent part:

      On the written demand of the prosecuting attorney,
      specifying as particularly as is known to the prosecuting
      attorney the place, date, and time of the commission of the
      crime charged, a defendant in a criminal case who intends to
      offer evidence of an alibi in defense shall, not less than 10
      days before trial or such other time as the court may direct,
      file and serve on the prosecuting attorney a notice in writing
      of an intention to claim an alibi, which notice shall contain
      specific information as to the place at which the defendant
      claims to have been at the time of the alleged offense and, as
      particularly as is known to the defendant or the defendant’s
      attorney, the names and addresses of the witnesses by
      whom the defendant proposes to establish the alibi. . . . Both
      the defendant and the prosecuting attorney shall be under a
      continuing duty to promptly disclose the names and
      addresses of additional witnesses who come to the attention
      of either party subsequent to filing their respective witness
      lists as provided in this rule. If a defendant fails to file and
      serve a copy of the notice as herein required, the court may
      exclude evidence offered by the defendant for the purpose of
      providing an alibi, except the defendant’s own testimony. . . .
      For good cause shown the court may waive the requirements
      of this rule.

Fla. R. Crim. P. 3.200. This rule is distinct from Florida Rule of Criminal
Procedure 3.220, which governs discovery. The Florida Supreme Court
has elaborated on the difference in the manner in which alleged
violations of these two rules are treated:


                                     2
         Although the two rules share the same rationale, to eliminate
         surprise at trial, the notice of alibi rule is not a discovery
         rule. Rule 3.200 also diminishes the opportunity of
         presenting manufactured false alibis. Under the ten-day
         notice requirement, the state is at least advised of the
         existence of the alibi and has the option of investigating it. If
         the state goes to trial without this notice, it does not have
         the opportunity to depose the alibi witness, determine the
         witness’s credibility, determine whether there is a witness to
         rebut the alibi witness’s testimony, or otherwise check its
         validity. Thus, a defense violation of rule 3.200 inherently
         prejudices the prosecution.

         Rule 3.220, like the notice of alibi rule, was designed to
         ensure that both the state and the defense have knowledge
         of relevant information regarding the case and are properly
         prepared for trial. However, unlike the notice of alibi rule, a
         violation of rule 3.220 will not always result in prejudice.
         For that reason, rule 3.220(n) provides a choice among
         sanctions the court may impose for violation of the rule.
         After conducting a Richardson inquiry, 1 the court can
         determine how severe the sanction should be based on the
         degree of prejudicial impact caused by the discovery
         violation. The notice of alibi rule does not provide a list of
         sanctions comparable to that in rule 3.220 because a
         violation of the notice of alibi rule will always result in
         prejudice. In contrast to rule 3.220, the notice of alibi rule
         limits the court to excluding the alibi evidence or waiving the
         requirement for good cause if the defendant fails to provide
         the state with the requisite notice. Because a violation of the
         notice of alibi rule is not completely analogous to a failure to
         furnish discovery information under rule 3.220, the
         decisional law applying to rule 3.220 is not equally
         applicable to the notice of alibi rule.

         ....

         A Richardson inquiry “is designed to ferret out procedural
         prejudice occasioned by a party’s discovery violation.” A
         good cause hearing, on the other hand, is designed to
         determine whether good cause existed to waive the
         requirements of the notice of alibi rule. While a trial court’s

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

                                          3
       failure to conduct a Richardson inquiry has been treated as
       per se reversible error, we hold that a trial court’s failure to
       conduct a good cause hearing regarding compliance with the
       notice of alibi rule should be reviewed to determine whether
       the defendant was harmed by such failure.

Small v. State, 630 So. 2d 1087, 1088-89 (Fla. 1994) (emphasis in
original) (footnote added) (internal citations omitted).

   Citing to Small, this court found no error where a trial court struck
defense alibi witnesses disclosed on the first day of trial after the trial
court found the appellant had not shown good cause to waive the
requirements of Rule 3.200. Ramsaran v. State, 664 So. 2d 1106, 1106-
07 (Fla. 4th DCA 1995). 2

  Here, the state demanded a notice of alibi, and McIntyre did not
comply with the requirements of rule 3.200.

    McIntyre did not offer the trial court any reason for his failure to
comply with rule 3.200. Thus, the court had no basis upon which to
waive McIntyre’s compliance with the notice of alibi rule. There is no
indication in the trial transcript that McIntyre was prevented from
offering grounds for his noncompliance. We find that McIntyre was not
harmed by the court’s failure to conduct a good cause hearing where it is
apparent that he had no good cause to offer.

    Affirmed.

TAYLOR and MAY, JJ., concur.

                             *         *          *

    Not final until disposition of timely filed motion for rehearing.




2This is not a case where the state did not demand a notice of alibi. In such a
case, and where the defendant participates in discovery, the failure to disclose
an alibi witness triggers the need for a Richardson hearing. Martin, 41 So. 3d at
1102.

                                       4
