                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

RYAN DEBORD,                          NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D12-6067

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed September 16, 2014.

An appeal from the Circuit Court for Escambia County.
Jan Shackelford, Judge.

Nancy A. Daniels, Public Defender, Pamela D. Presnell, Assistant Public
Defender, Steven L. Seliger, Assistant Public Defender, Tallahassee, and John L.
Wilkins of Arnold & Wilkins, Pensacola, for Appellant.

Pamela Jo Bondi, Attorney General, and Wesley Cross Paxson, Assistant Attorney
General, Tallahassee, for Appellee.



PER CURIAM.

      Appellant, Ryan DeBord, appeals his judgment and sentence for sexual

battery on grounds that the trial court abused its discretion by allowing the

testimony of two undesignated expert witnesses for the State. We agree, and

reverse and remand for a new trial.
         Everyone agrees in this case that the State violated Florida Rule of Criminal

Procedure 3.220 by not designating its expert witnesses in discovery. The parties

also agree that the trial court failed to conduct an adequate Richardson hearing. We

conclude that the trial court also abused its discretion by deciding summarily that

the State’s discovery violation was a harmless, technical one. The Florida Supreme

Court has established a very high bar for excusing discovery violations by the

State:

         [W]here the State commits a discovery violation, the standard for
         deeming the violation harmless is extraordinarily high. A defendant is
         presumed to be 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.”

Cox v. State, 819 So. 2d 705, 712 (Fla. 2002) (quoting State v. Schopp, 653 So.2d

1016, 1020 (Fla. 1995)); see also Scipio v. State, 928 So. 2d 1138, 1149-50 (Fla.

2006). In this case, there seems a reasonable possibility that Appellant would have

altered his trial preparation or strategy had the State disclosed its intent to obtain

expert testimony from these witnesses prior to the eve of trial. In fact, Appellant’s

counsel told the trial court that he would have deposed both expert witnesses and

possibly procured his own expert. Under these circumstances, we cannot conclude

beyond a reasonable doubt that Appellant was not procedurally prejudiced by the

State’s discovery violation. See Henry v. State, 42 So. 3d 328 (Fla. 2d DCA 2010).

Thus, we reverse and remand for a new trial. See Curry v. State, 1 So. 3d 394, 399

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(Fla. 1st DCA 2009). In view of this result, we need not address Appellant’s other

argument.

      REVERSED and REMANDED for a new trial.

BENTON, CLARK, and OSTERHAUS, JJ., CONCUR.




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