          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-809
                  _____________________________

KERRY WILSON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
James O. Shelfer, Judge.

                         December 18, 2018


M.K. THOMAS, J.

     Appellant, Kerry Wilson, appeals his judgment and sentence
for burglary of a dwelling with person assaulted and armed
robbery with a firearm, claiming in part the trial court abused its
discretion by allowing an expert witness to testify at trial for the
State. We agree, reverse, and remand for a new trial.

     Prior to trial, Appellant filed a Notice of Intent to rely on alibi
evidence. At trial, Appellant called two witnesses who testified he
was with them at a different location when the subject robbery was
committed. In response, the State announced it would be calling
an expert as a rebuttal witness. Appellant timely objected and
argued the expert testimony was barred as the State failed to
disclose the witness as an expert. The State argued that
Appellant’s counsel knew of the expert, had deposed the expert
before trial, and was in possession of the phone records to be
referenced by the expert. Appellant’s counsel clarified the witness
had been previously deposed, but solely on the use of cell phone
records to locate Appellant for his arrest and not for the purpose of
determining his location when the robbery occurred. Ultimately,
the trial court overruled Appellant’s objection finding no discovery
violation as “he was noted as a potential witness, this is in
rebuttal, and a rebuttal witness would not even have to be
disclosed. . . .” Furthermore, the trial court found because the
witness was known to the State before trial, there was no
“surprise.” Alternatively, Appellant requested a brief continuance
to allow him to re-depose the witness to address the additional
investigation efforts he performed after his deposition and at the
request of the State. Appellant further advised that had he known
the State was calling an expert to contradict his alibi, he would
have called his expert to provide testimony that the phone records
were unreliable. The trial court denied the continuance.

     At trial, the witness was called by the State as a phone records
expert. He testified Appellant’s cell phone data did not corroborate
his alibi evidence, but was consistent with Appellant being at the
location of the robbery at the time the robbery occurred. Over
objection by Appellant, the cell phone records were introduced
during his testimony.

     The jury found Appellant guilty as charged on both counts. He
was sentenced to life imprisonment as a prison releasee reoffender.
Appellant filed a motion for new trial based on three grounds: (1)
the trial court erred in failing to disclose the witness as an expert
witness; (2) even if the trial court’s inquiry concerning the alleged
discovery violation constituted a Richardson ∗ hearing, it was
inadequate; and (3) the trial court erred in refusing to grant
Appellant a brief continuance providing him an opportunity to
depose the witness in his newly labeled expert capacity. At the
motion hearing, Appellant’s counsel advised he had incorrectly
stated at trial that the State had disclosed the witness, but failed
to identify him as a phone expert. Instead, a complete review of the


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

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file confirmed the State had never formally disclosed the witness
in any context. The witness was verbally discussed by counsel at
some point before the trial, but was never included on a witness
list supplied to Appellant. The State confirmed the witness was
never included on any witness list, but that his identity had been
verbally disclosed to Appellant’s counsel before trial. The trial
court denied the motion for new trial. This appeal followed.

     The State concedes the expert was not disclosed during
discovery, which is a violation of Florida Rule of Criminal
Procedure 3.200. Rule 3.200 instructs:

    Not more than 5 days after receipt of defendant’s witness
    list, or any other time as the court may direct, the
    prosecuting attorney shall file and serve on the defendant
    the names and addresses (as particularly as are known to
    the prosecuting attorney) of the witnesses the state
    proposes to offer in rebuttal to discredit the defendant’s
    alibi at the trial of the cause. 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.

Further, Florida Rule of Criminal Procedure 3.220(b)(1)(i) requires
the State to disclose both “alibi witnesses and rebuttal alibi
witnesses” as well as “expert witnesses who have not provided a
written report and curriculum vitae or who are going to testify.”
The fact that the expert was a rebuttal witness does not alter the
State’s obligation to disclose him as a witness to the defense.
Sharif v. State, 589 So. 2d 960, 960 (Fla. 2d DCA 1991) (“The
identity of rebuttal witnesses is not excepted from the state’s
discovery obligation prescribed in Florida Rule of Criminal
Procedure 3.220(b).”).

     Here, the trial court incorrectly concluded that “a rebuttal
witness would not even have to be disclosed.” As explained in
Sharif, there is no rebuttal witness exception to the witness
disclosure requirements. 589 So. 2d at 960. The State counters that
because Appellant knew of the witness and the subject matter of
his testimony, he was not prejudiced by the discovery violation.
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However, prior to trial, the expert’s deposition was taken
regarding his assistance in locating Appellant after the crime
occurred so that he could be arrested on an outstanding warrant.
At the time of his deposition, the expert had not analyzed the cell
phone data to determine Appellant’s location during the
commission of the crime. It was only after the expert’s deposition
that further investigation was requested by the State and
performed by the expert. Although Appellant may have been
aware the witness was qualified to complete such an analysis, he
was never put on notice that such an analysis had been
undertaken or that the expert would offer testimony at trial
refuting his alibi defense.

      As a discovery violation occurred, the trial court was required
to conduct a Richardson hearing. Appellant argues the trial court
did not conduct an adequate Richardson hearing. “[W]hen a
discovery violation is alleged, the standard of appellate review is
whether the trial court abused its discretion in determining if a
violation occurred and if so, whether it was inadvertent, and not
prejudicial to the preparation of the defense.” Kipp v. State, 128
So. 3d 879, 881 (Fla. 4th DCA 2013) (citation omitted). In the event
a proper hearing was not conducted, the harmless error analysis
applies. C.D.B. v. State, 662 So. 2d 738, 741 (Fla. 1st DCA 1995)
(citing State v Schopp, 653 So. 2d 1016 (Fla. 1995)). The harmless
error test places “the burden on the state, as the beneficiary of the
error, to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict, or alternatively
stated, that there is no reasonable possibility that the error
contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129,
1135 (Fla. 1986).

    Where the State commits a discovery violation, the
    standard for deeming the violation harmless is
    extraordinary 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.

Debord v. State, 152 So. 3d 788, 789 (Fla. 1st DCA 2014) (internal
quotations and citations omitted).

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     In the instant case, there exists a reasonable probability
Appellant would have altered his trial preparation or strategy had
the State disclosed its intent to utilize expert testimony in rebuttal
prior to the defense resting its case. In fact, Appellant had
previously retained an expert who concluded the cell phone records
were inconclusive, which would have contradicted the testimony of
the State’s expert. Appellant chose not to call this witness based,
at least in part, on his belief the State would not be calling an
expert witness in rebuttal. Allowing the State to proceed with
presenting expert testimony amounted to trial by ambush. Based
on the foregoing, we cannot conclude beyond a reasonable doubt
that Appellant was not procedurally prejudiced by the State’s
discovery violation. See Debord, 152 So. 3d 788.

     As the State has failed to meet its burden of showing the
discovery error was harmless, we must reverse and remand for a
new trial. Id. at 789.

    REVERSED and REMANDED for a new trial.

WOLF and MAKAR, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Michael Ufferman of the Michael Ufferman Law Firm, P.A.,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.




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