              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT



STATE OF FLORIDA,                           )
                                            )
             Appellant,                     )
                                            )
v.                                          )         Case No. 2D15-597
                                            )
MICHELLE DAWN LAMBO,                        )
                                            )
             Appellee.                      )
                                            )

Opinion filed June 1, 2016.

Appeal from the Circuit Court for
Hillsborough County; Samantha L. Ward,
Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Wendy Buffington,
Assistant Attorney General, Tampa, for
Appellant.

Frank de la Grana and Scott Boardman,
Tampa; and Kenneth S. Siegel, Tampa,
for Appellee.


BLACK, Judge.

             The State challenges the trial court's order dismissing the information

charging Michelle Lambo with leaving the scene of a crash with injury. The trial court
determined that Lambo's due process rights were violated by law enforcement's failure

to preserve evidence. We reverse and remand.

              Lambo filed a motion to dismiss, or in the alternative a motion in limine,

alleging that law enforcement lost or destroyed materially exculpatory evidence.

Specifically, Lambo claimed that witnesses to the crash had been shown two photo

packs, both of which contained photos of Lambo, and none of the witnesses were able

to identify Lambo. Those photo packs have since been lost or destroyed. Lambo

claimed the photo packs are materially exculpatory evidence. She requested that the

court dismiss the information or alternatively enter an order preventing the State from

adducing any evidence or testimony regarding the specific contents of either of those

photo packs and limiting the questioning of each witness who viewed those photo packs

to whether photo packs were shown to them and whether the witnesses identified

Lambo. Lambo did not allege that the photo packs were lost or destroyed in bad faith.

              At the hearing on Lambo's motion, the parties stipulated that two photo

packs were produced and shown to at least two witnesses, that both photo packs

contained a photo of Lambo, and that the witnesses did not identify Lambo as the

suspect. In granting the motion to dismiss, the trial court found that the witnesses'

inability to identify Lambo would be significant to the defense where the evidence

against Lambo is wholly circumstantial and that an inability at trial to show the jurors the

photo or photos of Lambo that the witnesses were shown would violate Lambo's due

process rights based upon the totality of the circumstances in this case.

              We review an order granting a defendant's motion to dismiss de novo.

State v. Bennett, 111 So. 3d 943, 944 (Fla. 2d DCA 2013). "The dismissal of a charge




                                            -2-
is the most severe sanction a court can impose for the destruction of evidence; it is to

be used with the greatest caution and deliberation." State v. Thomas, 826 So. 2d 1048,

1049 (Fla. 2d DCA 2002). If evidence is materially exculpatory law enforcement has a

duty to preserve it and the failure to do so constitutes a due process violation. Bennett,

111 So. 3d at 944 (citing California v. Trombetta, 467 U.S. 479, 488 (1984)). Materially

exculpatory evidence is evidence which "might be expected to play a significant role in

the suspect's defense"; it is evidence "having 'constitutional materiality,' in that it

possesse[s] 'an exculpatory value that was apparent before the evidence was

destroyed' and [is] 'of such a nature that the defendant would be unable to obtain

comparable evidence by other reasonably available means.' " Bennett, 111 So. 3d at

944-45 (quoting Trombetta, 467 U.S. at 489).

              Conversely, where the lost or destroyed evidence is only potentially useful

to a defendant—"posing only some likelihood of exonerating a defendant"—the

defendant must establish bad faith on the part of law enforcement in order to succeed

on a motion to dismiss. Id. at 945; see also Yero v. State, 138 So. 3d 1179, 1182 (Fla.

3d DCA 2014).

              Here, the photo packs themselves are not the exculpatory evidence. It is

the testimony of the witnesses that is critical. That is, without the witnesses' testimony

the photo packs hold little evidentiary value and are only potentially useful to the

defense. See Bennett, 111 So. 3d at 945 ("It is undisputed that the video showed the

altercation between Bennett and Barron, but it is also undisputed that at least three

people other than the two participants also witnessed it. Thus the defense can obtain

evidence comparable to the video in the form of the eyewitnesses' testimony. That




                                             -3-
being so, the unavailable video did not rise to the level of constitutionally material

evidence."); State v. Rivers, 837 So. 2d 594, 595 (Fla. 2d DCA 2003) (reversing

dismissal where a lost audiotape was only "potentially useful evidence due to the

existence of the transcript of the tape" because "in the absence of the audiotape, Rivers

had 'alternative means of demonstrating [his] innocence.' " (quoting Arizona v.

Youngblood, 488 U.S. 51, 56 (1988))).

              Accordingly, we reverse and remand with instructions to reinstate the

charges.



KELLY and SALARIO, JJ., Concur.




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