#### Robert G. WILCOX, Appellant, v. The STATE of Florida, Appellee.

No. 77-1239.

District Court of Appeal of Florida, Third District.

March 21, 1978.

*888Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.

Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

The defendant appeals from conviction of grand larceny, armed burglary, and resisting arrest with violence, of which offenses he was found guilty on a jury trial. Adjudication of guilt was withheld on the convictions of grand larceny and resisting arrest. The defendant was adjudged guilty of the burglary offense, and was sentenced to imprisonment for a term of 15 years.

Based on fingerprint evidence, the defendant was arrested. At trial one of the arresting officers testified that when the defendant was informed he was under arrest, in resisting arrest, he stated: “I’m not going to jail again. I’m not going to jail again”.

The defense had requested discovery, under Fla.R.Crim.P. 3.220(a)(l)(iii), of any oral statements made by the defendant which were known to the prosecution. The response of the State thereto had not disclosed the above statement of the defendant. For that reason and other stated grounds, including prejudicial effect thereof, the defense attorney moved the court for an order of mistrial. The motion was denied, and the court instructed the jury to disregard the said testimony.

*889In contending for reversal, appellant argues first that it was reversible error for the court to fail to conduct an inquiry into the circumstances of the State’s failure to comply with the discovery rule in the respect above noted, citing: *Cumbie v. State,*345 So.2d 1061 (Fla.1977), and *Richardson*v. *State,*246 So.2d 771 (Fla.1971). Those cited cases are not applicable to the situation here. This was not an instance of where the court, after being informed of non-compliance with such discovery, is required to make an inquiry as to whether evidence to be introduced will be prejudicial, so as to preclude its introduction. Here the evidence, to the extent that it was prejudicial, had already been brought out in the testimony before the jury. In that circumstance, the question for the court was to determine the degree of prejudice thereof, and as to whether a mistrial, as requested, should be granted.

That leads to the second contention of the appellant, which is that the denial of defendant’s motion for mistrial was reversible error. We hold that contention is without merit, on authority of *Perry v. State,*146 Fla. 187, 200 So. 525 (1941), and *Williams v. State,*354 So.2d 112 (Fla. 3d DCA 1978).

A third error claimed by the appellant was refusal of the court to give a jury charge requested by the defendant relating to the standard of proof applicable when the State relies on fingerprint evidence, in conformity with the law relating thereto as pronounced in *Ivey v. State,*176 So.2d 611 (Fla. 3d DCA 1965), and *Tirko v. State,*138 So.2d 388 (Fla. 3d DCA 1962), in which it was held that where fingerprint evidence is relied on to establish that the defendant is the perpetrator of a crime it must meet the requirement that the circumstances are such that the print could have been made only at the time the crime was committed. Those cases, which stated the law but did not deal with the question of giving or refusing to give a separate charge on that feature, were decided prior to the approval by the Supreme Court of Florida on February 4, 1976 of the Standard Jury Instructions in Criminal Cases. The trial court charged the jury on circumstantial evidence, as set forth in Standard Charge 2.14. We hold no error was committed in refusing to give the requested charge in addition to the charge thus given.

For the reasons stated, the judgment is affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. In my view, the trial court committed reversible error in failing to conduct a *Richardson*inquiry into the state’s admitted discovery violation.

It is the established law of this state that once a violation of the state’s obligation to make discovery under Fla.R.Crim.P. 3.220 is brought to the attention of the trial court, it is the court’s responsibility to conduct an inquiry into the surrounding circumstances concerning the discovery violation to determine whether the defendant has been thereby prejudiced and what sanctions, if any, should be imposed. This inquiry at a minimum must include whether the state’s failure to make discovery was inadvertent or willful, whether the discovery violation was trivial or substantial, and most importantly, what effect, if any, the said discovery violation had on the ability of the defendant to properly prepare for trial. In such inquiry, the state has the burden of showing that the defendant was not prejudiced by the state’s discovery violation. The failure of the trial court to conduct such an inquiry once the discovery violation is brought to its attention is reversible error without regard to the harmless error doctrine. *Cumbie v. State,*345 So.2d 1061 (Fla.1977); *Richardson v. State,*246 So.2d 771 (Fla.1971); *Lavigne*v. *State,*349 So.2d 178 (Fla. 1st DCA 1977); *Allen v. State,*346 So.2d 1241 (Fla. 1st DCA 1977); *Hardison v. State,*341 So.2d 270 (Fla. 2d DCA 1977); *Kruglak v. State,*300 So.2d 315, 316 (Fla. 3d DCA 1974); *Rembert v. State,*284 So.2d 428 (Fla. 3d DCA 1973); *Carnivale v. State,*271 So.2d 793 (Fla. 3d DCA 1973); *Garcia v. State,*268 So.2d 575 (Fla. 3d DCA 1972); *Salamone v. State,*247 So.2d 780 (Fla. 3d DCA 1971).

*890The state does not contest any of the above well-settled principles of criminal discovery law. Nor does the state deny that it violated its responsibility under the criminal discovery rules when in response to a defense demand for discovery it falsely stated that it had no statements made by the defendant to the police and failed to disclose to the defendant the oral statement made by the defendant to the arresting officer herein in violation of Fla.R.Crim.P. 3.220(a)(1)(iii). *Cumbie*v. *State,*345 So.2d 1061 (Fla.1977). Instead, the state’s sole argument on appeal as to this issue is that its admitted discovery violation was not brought to the attention of the trial court by defense counsel in his motion for mistrial made immediately after the undisclosed statement was testified to by the arresting officer before the jury. This argument has no merit. The court in its opinion herein has impliedly rejected this contention by accurately concluding that the state’s nondisclosure of the defendant’s statement was one of the reasons given by defense counsel for the said motion for mistrial. Since the required inquiry into the discovery violation was not thereafter conducted by the trial judge, a reversal of the conviction herein is clearly mandated by the applicable law of this state.1

The court in its opinion, however, distinguishes the *Richardson*inquiry cases on the ground that the undisclosed statement herein was already introduced in evidence before the discovery violation was brought to the court’s attention and, therefore,- no inquiry as to prejudice was required. I find no such exception stated or implied in the *Richardson*line of cases, nor do I feel that such a distinction is warranted. Otherwise, the state could escape trial court inquiry into its discovery violations by the device of surreptitiously slipping into evidence previously undisclosed discovery evidence before the defendant has a chance to object. Obviously, such a procedure if approved would undermine the *Richardson*inquiry requirement.

In the instant case, defense counsel promptly brought the discovery violation to the court’s attention as soon as he learned of it. The police witness blurted out the previously undisclosed statement herein and immediately thereafter defense counsel moved for a mistrial and complained of the state’s discovery violation. This circumstance in no way constitutes a waiver of the trial court’s responsibility to conduct thereafter an inquiry into the discovery violation herein and the cases fail to recognize any such exception.

Moreover, the court does not address the question of whether the defendant was prejudiced by the discovery violation in his *891ability to prepare his case for trial. Nor is there any discussion as to whether the state’s discovery violation was willful or inadvertent, substantial or trivial. These are the critical issues which should have been determined by the trial court in an inquiry required by the *Richardson*line of cases. It is not our function to decide these questions on appeal in the absence of a trial court inquiry into the subject. The Supreme Court of Florida in *Cumbie v. State,*345 So.2d 1061 (Fla.1977), has so held particularly where, as here, the state has given a false response on discovery.2

As to the defendant’s contention that the court erred in failing to give a special instruction with respect to fingerprints as circumstantial evidence, I entirely agree with the court’s disposition of this point based on the authority of *Jones v. State,*336 So.2d 672 (Fla. 1st DCA 1976).

I would reverse the conviction herein and remand the cause for a new trial.

1

. The testimony of the arresting officer on direct examination by the state and defense counsel’s motion for mistrial based thereon occurred at trial as follows:

> “Q. Did you have an occasion to actually come in contact and meet Robert Wilcox to effectuate the arrest?

> A. Yes, I did.

> Q. Where was that?

> A. In his house.

> Q. Okay. Did you tell Mr. Wilcox he was under arrest?

> A. Yes, we did.

> Q. Did he go with you?

> A. Not willingly at first.

> Q. What happened?

> A. We advised him he would have to go down to the station. He said that in various words, *I believe his exact words were, ‘Quit fucking with me, I’m not going to jail again. I’m not going to jail again.’*[Emphasis added]

> MR. FLYNN [DEFENSE COUNSEL]: Objection. Ask for a sidebar.

> THE COURT: Let’s excuse the jury for a minute.

> MR. FLYNN [DEFENSE COUNSEL]: May the witness, likewise, be excused for argument?

> THE COURT: Sure.

[Thereupon, the jury retired from the courtroom and the following proceedings were had:]

> MR. FLYNN [DEFENSE COUNSEL]: Your Honor, at this point, I would move for a mistrial based on the statements of the officer concerning what the defendant said. *I have before me the State’s response for discovery, it indicates there are no statements of the defendant. We now have, contrary to the State’s discovery, a statement before the jury*which is, number one, of extremely questionable relevance; number two, reflects that the defendant, a juvenile, has been in jail on prior occasions, and accordingly has been arrested in the past and possibly even convicted of crimes in the past. There was no need for this testimony. It’s irrelevant.” [Emphasis added]

2

. “A review of the cold record is not an adequate substitute for a trial judge’s determined inquiry into all aspects of the state’s breach of the rules, as *Richardson*indicates. Especially is this so in cases such as this, where a false response is given to a request for discovery.” 345 So.2d at 1062.