                                         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 December 9, 2014.

An appeal from an order of the Escambia County Circuit Court.
Jan Shackelford, Judge.

Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public
Defender, Tallahassee, for Appellant.

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




PER CURIAM.

      Appellant, Ryan DeBord, appeals his judgments and sentences for sexual battery

and lewd and lascivious molestation 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
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reverse and remand for a new trial. See Curry v. State, 1 So. 3d 394, 399 (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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