         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                   NOT FINAL UNTIL TIME EXPIRES TO
                                                   FILE MOTION FOR REHEARING AND
                                                   DISPOSITION THEREOF IF FILED


STATE OF FLORIDA,

             Petitioner,

 v.                                                       Case No. 5D16-245

ANTHONY CHRIS JOHNSON,

             Respondent.

________________________________/

Opinion filed August 5, 2016

Petition for Certiorari Review of Order
from the Circuit Court for Brevard County,
James H. Earp, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Wesley Heidt, Assistant
Attorney General, Daytona Beach, for
Petitioner.

James S. Purdy, Public Defender, and
Allison A. Havens, Assistant Public
Defender, Daytona Beach, for Appellant.


LAMBERT, J.

      The State of Florida petitions this court for a writ of certiorari to quash an order that

excluded two of its witnesses from testifying at trial. Although we understand the trial

court’s frustration with the State’s late disclosure of the names of the two witnesses, we

nevertheless grant the petition and quash the order because the trial court departed from
the essential requirements of law by not utilizing a less severe alternative sanction than

the exclusion of the witnesses.

       Respondent, Anthony Chris Johnson, was charged by information with violating

section 893.13(1)(a)1., Florida Statutes (2014), by selling or delivering hydromorphone,

a controlled substance, to a confidential informant.      The transaction occurred on

September 3, 2014, and Respondent was not arrested until July 20, 2015. Three days

later, Respondent filed a demand for discovery to which the State responded on August

26, 2015, notifying Respondent that part of the State’s evidence that it may use at trial

included material or information provided by a confidential informant and a report or

statement from an expert in the field of “chemistry,” with the name of the expert to be

disclosed at a later date.

       On December 14, 2015, Respondent filed a demand for speedy trial pursuant to

Florida Rule of Criminal Procedure 3.191(b). This rule requires that a defendant be

brought to trial within fifty days of the filing of the demand, and, if the trial has not

commenced within that time, the defendant can then seek a discharge from the crime

charged. See Fla. R. Crim. P. 3.191(b)(4). Following two calendar calls, Respondent’s

case was set for trial on January 19, 2016.

       Subsequent to Respondent’s demand for speedy trial, the State sent the alleged

controlled substance in question to the Florida Department of Law Enforcement (“FDLE”)

for testing and analysis. On January 11, 2016, the FDLE chemist issued a written report

determining that the substance provided to the FDLE by the State was hydromorphone.

On January 13, 2016, the State sent Respondent its “supplemental discovery” response,

disclosing the FDLE report to Respondent and providing Respondent with the name of




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the FDLE chemist and the name of the confidential informant who the State intended to

call as witnesses at trial. On Friday, January 15, 2016, Respondent filed a motion to

exclude these two witnesses from trial, alleging that the State committed discovery

violations with its late disclosure of the names of these witnesses right before trial.

       On Tuesday, January 19, 2016, the morning of trial, the court conducted a hearing

on Respondent’s motion.1 The court determined that while there was no evidence of

intentional misconduct by the State in its failure to timely disclose the names of these two

witnesses, Respondent was prejudiced by the late disclosure “because he filed his

demand [for speedy trial] based on the case as it existed at the moment in time that he

did that, and that there’s no way to cure the prejudice other than by excluding the

witnesses.” Although the court recognized that time still remained before the speedy trial

period elapsed to conduct discovery, the court summarily concluded that this would not

be a sufficient remedy to cure the prejudice.

       “The State may seek certiorari review of non-final pretrial orders that exclude

critical evidence from the State’s case in a criminal trial.” State v. Rolack, 104 So. 3d

1286, 1288 (Fla. 5th DCA 2013) (citations omitted). Certiorari review is appropriate in

such circumstances because the State has no right to a direct appeal in the event a

defendant is thereafter acquitted. State v. Gerry, 855 So. 2d 157, 159 (Fla. 5th DCA

2003) (citations omitted). However, the State’s entitlement to the issuance of the writ of

certiorari after the trial court excludes its evidence still “depends on whether the State can

show that there has been a violation of a clearly established legal principle[,] resulting in

a material injustice.” Rolack, 104 So. 3d at 1288 (citations omitted).



       1   January 18, 2016, was a national holiday and the courthouse was closed.

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       To be clear, the issue before us is not whether the State furnished discovery to

Respondent in a timely fashion. It did not. We recently reiterated that “[t]he [S]tate must

furnish discovery within sufficient time to allow the defendant to prepare for trial without

forfeiting his right to a speedy trial.” State v. Zackery, 181 So. 3d 1204, 1206 (Fla. 5th

DCA 2015) (second alteration in original) (quoting Staveley v. State, 744 So. 2d 1051,

1052–53 (Fla. 5th DCA 1999)). Florida Rule of Criminal Procedure 3.220(n)(1) authorizes

a trial court to prohibit a party from calling a witness at trial as a sanction for a discovery

violation.   Moreover, the trial court should be afforded “considerable latitude” in

addressing situations such as the late disclosure of new evidence and witnesses. Austin

v. State, 461 So. 2d 1380, 1381–82 (Fla. 1st DCA 1984). However, when considering

the appropriate remedy for the late discovery, the severe sanction of witness exclusion

for the failure to timely comply with the rules of procedure should be a last resort and

reserved for extreme or aggravated circumstances, particularly when the excluded

testimony relates to critical issues or facts and the testimony is not cumulative. Id.

Essentially, “this sanction should be imposed only when there is no other adequate

remedy.” State v. Roberson, 152 So. 3d 776, 779 (Fla. 5th DCA 2014) (citing McDuffie

v. State, 970 So. 2d 312, 321 (Fla. 2007)). In the present case, the trial court’s exclusion

of the State’s two witnesses is tantamount to a dismissal of the case because it excludes

the only other participant to the sale of the controlled substance and precludes expert

witness testimony that the object of the sale was, in fact, hydromorphone.

       We conclude that the trial court’s order violated clearly established legal principles

resulting in material injustice. First, the trial court summarily concluded that Respondent

suffered prejudice by the late disclosure without there being sufficient record evidence of




                                              4
prejudice.   Contextually, prejudice means procedural prejudice materially affecting

Respondent’s preparation for trial. Rolack, 104 So. 3d at 1288 (citations omitted). Here,

Respondent was notified by the State in August 2015 that it would be utilizing a

confidential informant and a chemist at trial. Admittedly, the names of the witnesses were

not initially disclosed; however, a copy of a DVD depicting the sale and a copy of the

interview with the confidential informant by law enforcement was provided at that time.

Respondent made no effort prior to filing his demand for speedy trial to compel the name

of the confidential informant and to thereafter take his deposition. Second, any prejudice

to Respondent’s trial preparation could have readily been cured by a short continuance

of the trial to a date still within the speedy trial time to allow Respondent to take the

depositions of the FDLE witness and the confidential informant. See State v. Guzman,

697 So. 2d 1263, 1264 (Fla. 3d DCA 1997). Finally, the elements of the crime of sale or

delivery of hydromorphone are not complex, and it is doubtful that the deposition of either

the FDLE chemist or the confidential informant would be lengthy or that Respondent’s

counsel would be surprised by the testimony from either deposition.

       Accordingly, we grant the State’s petition for certiorari, quash the order under

review, and remand to the trial court for further proceedings.

       PETITION FOR WRIT OF CERTIORARI GRANTED; ORDER QUASHED;

REMANDED for further proceedings.

COHEN and WALLIS, JJ., concur.




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