        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                             JOHN GOODMAN,
                                Appellant,

                                       v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D14-4479

                             [October 25, 2017]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey J. Colbath, Judge; L.T. Case No. 502010CF005829
AMB.

   Margaret Good-Earnest and Cherry Grant of Good-Earnest Law, P.A.,
Lake Worth, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

                        ON MOTION FOR REHEARING

WARNER, J.

   In his motion for rehearing, appellant contends that we did not apply
the analysis of California v. Trombetta, 467 U.S. 479 (1984), correctly. He
contends the Bentley should have been considered as “possess[ing] an
exculpatory value that was apparent before [the evidence] was destroyed,”
in that his expert had already developed opinions regarding the
malfunction of the vehicle to which he testified in the first trial. Id. at 489.
Instead, he asserts that we addressed the Bentley as only potentially
exculpatory evidence if subject to additional tests which could exonerate
the defendant. Arizona v. Youngblood, 488 U.S. 51, 57 (1988).

   Addressing appellant’s contention that the Bentley had exculpatory
value when it was destroyed, we still do not find that it meets the Trombetta
test. Even if the Bentley had exculpatory value before it was destroyed,1
it was not of “such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.” Trombetta,
467 U.S. at 489. The useful evidence from the Bentley had already been
obtained from the vehicle and used by the expert as the foundation of his
opinion regarding the malfunction of the vehicle. He was able to give his
opinion in the second trial, just as he did in the first trial. Thus, it was
the expert’s opinion, not the presence of the Bentley, which furnished the
materially exculpatory evidence.

   Although the initial brief focused exclusively on the malfunction of the
Bentley in addressing its exculpatory value, in the last paragraph of the
reply brief appellant also maintained that the physical condition of the
vehicle was exculpatory and thus required the presence of the vehicle in
the second trial. In the motion for rehearing, appellant makes this a
feature of his argument. However, there were a multitude of photos of the
vehicle used by witnesses and experts. 2 Appellant has not shown that the
vehicle was of such a nature that the defendant would be “unable to obtain
comparable evidence by other reasonably available means.” Id. Therefore,
we still find that Trombetta does not compel dismissal of the charge.

   We deny the motion for rehearing on all issues, although we note that
in discussing the motion to suppress the blood draw we did erroneously
state that four hours, rather than three, passed between the accident and
the blood draw. That factual error does not change our analysis or
conclusions.

TAYLOR and LEVINE, JJ., concur.




1  One could question whether the Bentley had exculpatory value, as the jury
found appellant guilty beyond a reasonable doubt at the first trial when all of the
expert’s testimony and the Bentley were presented. No other case has this unique
circumstance of having a first trial at which the defendant was convicted even
with the presentation of the evidence now alleged to be materially exculpatory.

2 The record shows that the court admitted at least fifty-four pictures of the
Bentley and its parts.

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