#### Charles C. ROUSE, Appellant, v. STATE of Florida, Appellee.

No. 70-381.

District Court of Appeal of Florida, Second District.

Jan. 22, 1971.

Tobey C. Hockett, of Lee & Hockett, Sarasota, for appellant.

Robert L. Shevin, Atty. Gen., and John A. Zebedee, Asst. Atty. Gen., Tallahassee, for appellee.

HOBSON, Judge.

Appellant was tried by jury and convicted on a charge of robbery in violation of Section 813.011, Florida Statutes, F.S.A.

On appeal appellant raises three points, one of which we consider to be meritorious. Approximately two months prior to trial Rouse filed an offer to exchange witness lists as provided by Rule 1.220(e), Fla.R.Cr.Pr., 33 F.S.A. In response the State filed a list of the witnesses it intended to call at trial and at a later date made an addition to this list. Nowhere on either list was found the name of one Marcel David. During the course of the trial Marcel David, a New Orleans police officer who had participated in appellant’s arrest in New Orleans, was called to testify over defendant’s objections. Specifically, Rouse maintained that had he known that David was going to testify he would have subpoenaed other officers who participated in his arrest in order to impeach David’s testimony. Although Rouse then offered the deposition of Officer Sachs of the New Orleans Police Department in order to impeach Officer David’s testimony the court refused the proffer and thereby left Rouse unable to attempt to impeach Officer David’s testimony.

If the State had included Officer David’s name on the witness lists it furnished appellant as it is required to do under our rules of criminal procedure, we would not now be compelled to remand for a new trial. In the most direct and unequivocal terms this court recently announced in Richardson v. State, 233 So.2d 868, 870 (2d D.C.A.Fla.1970) that:

> “We would like to point out, however, that Rule 1.220(e) is mandatory in its direction that once the defendant chooses to set it into motion, the prosecuting attorney shall furnish the required witness list within the specified time. The Florida Rules of Criminal Procedure were promulgated with the intent that they would be complied with. We will in the future expect the State to comply with the Florida Rules of Criminal Procedure. The noncompliance thereof could very well require reversal or a new trial at the expense of the taxpayers which could be easily avoided by merely adhering to the rules.”

*226The other two points on appeal have being carefully considered and found to be without merit.

The judgment of the lower court is vacated and the case is remanded for a new trial.

PIERCE, C. J., concurs.

McNULTY, J., concurs specially.

McNULTY, Judge

(concurring specially)-

While I fully concur in the conclusion reached by the majority, I don’t want to leave the impression that I would favor an interpretation of this case as holding that noncompliance with Rule 1.220(e) CrPR, 33 F.S.A. is absolutely fatal to the admissibility of the testimony in question or that admission of such testimony, notwithstanding noncompliance, is *ipso facto*reversible error. Certainly the rule has its valid purpose and should be strictly followed as we said in Richardson v. State.1 But because of the finality of a criminal case when jeopardy to an accused attaches justice may require flexibility in its interpretation. In this case, for example, had the court recessed the proceedings and given appellant a reasonable opportunity to call the impeaching rebuttal witness, the admissibility of the questioned testimony would be nonprejudicial. The reversible error, as I see it then, is not that the trial court permitted the testimony objected to but, rather, that no opportunity was afforded appellant to counter any prejudicial effect thereof.

Effective means to enforce Rule 1.-220(e), 33 F.S.A. or to punish noncompliance, can be devised; and they may be diverse. But one of them ought not be to the fatal prejudice of'the people of Florida except in those rare instances when there is no other reasonable or practicable course for a trial judge to follow.

1

. (Fla.App.1970), 233 So.2d 868, 870.