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.
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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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Ryan Debord v. State of Florida
Combined Opinion