DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

RAYMOND GERMAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D15-1393

[May 18, 2016]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Geoffrey D. Cohen, Judge; L.T. Case No. 0901111CF10A.

Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. 

Melear, Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

Appellant Raymond German was charged with violating the conditions 

of his probation after an initial conviction for stalking and battery. 

Appellant now challenges the trial court’s exclusion of all of Appellant’s 

witnesses as a discovery sanction during the violation of probation 

hearing. Because we agree that the trial court erred, we reverse and 

remand for a new hearing on the violation of probation charge.

BACKGROUND

Appellant was initially charged with stalking and simple battery. He 

pleaded no contest to both counts and was sentenced to a total of eighteen

months of probation. As a condition of probation, Appellant was 

prohibited from contacting the victim of the initial charges. 

The day after his conviction, Appellant met with his probation officer 

and was instructed on all of the conditions of his probation. The following 

day, Appellant allegedly went to the victim’s home. Two days later, he 

allegedly started calling the victim, making ten to fifteen calls per day for 
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the next three days. The victim met with Appellant’s probation officer to 

complete an affidavit regarding the calls. While the victim was at the 

probation office, she received yet another call from the Appellant. Both 

the victim and probation officer testified that they recognized the caller’s 

voice as Appellant’s. 

Appellant was charged with violating his probation and the victim and 

probation officer testified to the events described above. 

When Appellant attempted to call his first witness, the State objected 

that Appellant had not filed a witness list. Defense counsel acknowledged 

this was true, but argued she had just found out about the witnesses and 

informed the State approximately an hour before the hearing. Defense 

counsel offered to let the State Attorney speak to the witnesses, but the 

State Attorney informed the trial court that, due to time constraints prior 

to the hearing, she was unable to accept this offer.

The trial court sustained the objection to the first witness, finding the 

defense counsel’s notice “totally inadequate.” The court found the 

discovery violation was “material, substantial and with prejudice to the 

State.” The court similarly excluded all other defense witnesses. 

Appellant was allowed to testify and stated he never contacted the 

victim, and that she was the one who initiated the contact by coming to 

his home. He denied calling the victim and stated he was “terrified” of the 

victim.

In light of the directly contradictory testimony, the trial court found 

that the probation officer and victim were credible, while Appellant was 

“on all material issues . . . not believable.” The trial court found Appellant 

violated his probation by contacting the victim and revoked his probation. 

The trial court proceeded to sentencing and imposed the maximum 

statutory sentence for the underlying offense, five years in prison. This 

appeal followed. 

ANALYSIS

Appellant admits to a discovery violation, but argues the trial court 

improperly struck his witnesses as a sanction. A trial court’s 

determination on a discovery violation is reviewed for an abuse of 

discretion. Tobin v. Tobin, 117 So. 3d 893, 895 (Fla. 4th DCA 2013). 

“Although ‘the trial court has discretion to determine whether a discovery 

violation would result in harm or prejudice to the defendant, “the court’s 

discretion can be properly exercised only after the court has made an 
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adequate inquiry into all of the surrounding circumstances.”’” Thomas v. 

State, 63 So. 3d 55, 59 (Fla. 4th DCA 2011) (quoting Barrett v. State, 649 

So. 2d 219, 222 (Fla. 1994)).

Probation hearings are governed by the usual rules of discovery found 

in Florida Rule of Criminal Procedure 3.220(d)(1)(A). Cuciak v. State, 394 

So. 2d 500, 501 (Fla. 4th DCA 1981). Under that rule, defendants are 

required to provide “a written list of the names and addresses of all 

witnesses whom the defendant expects to call as witnesses at the trial or 

hearing.” Fla. R. Crim P. 3.220(d)(1)(A). Appellant admits that he failed to 

comply with the requirements of the rule.

Where a discovery violation occurs, the trial court must conduct an 

adequate Richardson inquiry, “regardless of which party is at fault.”

Delhall v. State, 95 So. 3d 134, 161 (Fla. 2012) (discussing Richardson v. 

State, 246 So. 2d 771 (Fla. 1971)). We must therefore first determine if 

the Richardson inquiry was sufficient. In Richardson, the Supreme Court 

described what made an inquiry adequate.

Without intending to limit the nature or scope of such inquiry, 

we think it would undoubtedly cover at least such questions 

as whether the [party’s] violation was inadvertent or willful, 

whether the violation was trivial or substantial, and most 

importantly, what effect, if any, did it have upon the ability of 

the [other party] to properly prepare for trial.

Richardson, 346 So. 2d at 775. Here, the trial court made explicit findings 

that the violation was “material, substantial and with prejudice to the 

State.” However, the trial court failed to make any oral or written findings 

about the willfulness of the violation. The trial court was required to do 

so as part of a complete Richardson hearing. Id. 

The trial court also erred in crafting the sanction for this discovery 

violation. “If the trial court finds procedural prejudice, it can tailor a just

remedial order, but ‘[r]elevant evidence should not be excluded from the 

jury unless no other remedy suffices.’” Patterson v. State, 419 So. 2d 1120, 

1123 (Fla. 4th DCA 1982) (alteration in original) (quoting Cooper v. State, 

336 So. 2d 1133, 1138 (Fla. 1976)).

It is well-settled that when a discovery violation is committed 

by the State, exclusion of the evidence is viewed as an extreme 

sanction to be employed only as a last resort and only after 

the court determines no other reasonable alternative exists to 

overcome the prejudice and allow the witness to testify. . . . 
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[T]his rule applies with equal or greater force when a defense 

witness or evidence is sought to be excluded for a defense 

discovery violation, because there are few rights more 

fundamental than the right of an accused to present evidence 

or witnesses in his [or her] own defense. The ‘extreme 

sanction of excluding [defense] evidence’ should be used only 

as a last resort and it is incumbent upon the trial court to 

determine whether any other reasonable alternatives can be 

employed to overcome possible prejudice. Here, exclusion of 

the evidence was actually the first resort, not the last.

Delhall, 95 So. 3d at 162-63 (final alteration in original) (citations omitted) 

(quoting McDuffie v. State, 970 So. 2d 312, 322 (Fla. 2007)); see also 

Alexander v. State, 931 So. 2d 946, 950 (Fla. 4th DCA 2006). Similarly, in 

this case the trial court did not explore other possible remedies before 

barring the Appellant’s proposed witnesses. As in Alexander, “[a]ny 

prejudice or surprise could have been avoided by permitting deposition or 

continuance.” Alexander, 931 So. 2d at 950-51.

CONCLUSION

The errors committed by the trial court were not harmless under the 

standard set forth in State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)

(the State has the burden “to prove beyond a reasonable doubt that the 

error complained of did not contribute to the verdict or, alternatively 

stated, that there is no reasonable possibility that the error contributed to 

the conviction”). Accordingly, we reverse the order revoking Appellant’s 

probation and remand for a new hearing on Appellant’s alleged violation 

of probation.

Reversed and remanded for new hearing.

STEVENSON and GROSS, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.