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

DAVID AUSTIN TYSON,

Appellant,

v. Case No. 5D23-125

LT Case No. 45-2021-CF-220

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed May 19, 2023

Appeal from the Circuit Court

for Nassau County,

James H. Daniel, Judge.

Rick A. Sichta and Susanne K.Sichta,

of The Sichta Firm, LLC, Jacksonville, 

for Appellant.

Ashley Moody, Attorney General, and 

Adam B. Wilson, Assistant Attorney 

General, Tallahassee, for Appellee.

BOATWRIGHT, J.
2

Appellant, David Tyson, appeals his judgment and sentence, where a 

jury of his peers found him guilty of aggravated assault on a law enforcement 

officer, battery on a law enforcement officer, resisting arrest with violence, 

and carrying a concealed firearm. Appellant argues on appeal that the trial 

court reversibly erred when it did not conduct a Richardson1 hearing after it 

was apprised that the State violated Florida Rule of Criminal Procedure 

3.220 by not producing statements allegedly made by Appellant during 

discovery and then using them at trial. We agree and reverse Appellant’s 

judgment and sentence and remand for a new trial.

I. 

In March 2021, Appellant and his girlfriend, along with his two minor 

children, traveled to Nassau County to go the beach. When they arrived at 

the beach, they stopped at the guard shack at the entrance to the beach. 

Although the guard informed Appellant that he could not drive on the beach 

because he was not a Nassau County resident, Appellant proceeded to drive 

on the beach. The guard then flagged down two deputies with the Nassau 

County Sheriff’s Office, who approached Appellant and requested that he 

1 The term “Richardson hearing” refers to the Florida Supreme Court’s 

opinion in Richardson v. State, in which the Court recognized a defendant’s 

right to a hearing on a possible discovery violation and delineated the 

procedure for such a hearing. 246 So. 2d 771 (Fla. 1971).
3

produce identification demonstrating his residency. According to the 

deputies, after they informed Appellant that he needed to remove his vehicle 

from the beach because he could not produce identification demonstrating 

his residency, he became irate and refused to leave the beach. A physical 

altercation ensued between Appellant and the deputies, and Appellant was 

arrested on multiple charges based on the altercation.

The case proceeded to a jury trial. Although the beach was crowded 

on the date of the incident, the only eyewitnesses to the physical altercation

called by State were the two deputies. At trial, the deputies testified that 

Appellant initiated the physical altercation after one deputy indicated he was 

going to arrest Appellant if he continued to refuse to leave the beach. In 

particular, one deputy testified that Appellant forcefully shoved him, causing 

him to draw his taser. The deputy stated that Appellant then grabbed a 

firearm from inside his truck and raised the barrel toward him, at which point

he tased Appellant and arrested him. Although the deputies had bodycam 

equipment with them, they did not turn on their cameras until after Appellant 

had been arrested.

Appellant testified to his version of the events surrounding the 

altercation. According to Appellant, the deputies were responsible for 

physically escalating the altercation. Notably, Appellant testified that he 
4

never drew a firearm on the deputy. Instead, he alleged that when the deputy 

drew his taser, he perceived the taser to be a firearm, and attempted to get 

into his truck to avoid the taser. As a result, while getting into his truck, he 

bumped into the driver’s side door which caused the firearm to fall out of the 

side door panel. Appellant’s girlfriend and one of his children were also

eyewitnesses to the incident, and they testified to a version of events that 

was consistent with Appellant’s testimony.

Towards the end of Appellant’s testimony, while on cross-examination, 

the State confronted Appellant with an internal Nassau County Sheriff’s 

Office complaint and related email. Both items were purported to contain 

statements made by Appellant, but these items were not turned over to the 

defense in discovery. The State initially used the complaint as an attempt to 

impeach Appellant concerning an alleged prior inconsistent statement he 

had made during trial. When Appellant denied having authored the 

complaint, the State cross-examined Appellant with the email, which 

purportedly contained a statement indicating that he made the complaint.

Appellant denied creating or sending the email. Of utmost importance, the 

State could not authenticate either the complaint or the email and never tried 

to enter them into evidence.
5

On redirect, defense counsel attempted to rehabilitate Appellant’s 

credibility by introducing the complaint and email into evidence to 

demonstrate that Appellant did not create them. The State objected that the 

documents were inadmissible because they were hearsay. Following a 

sidebar conference, the trial court sustained the State’s objection. 

During the sidebar conference, defense counsel alleged that the 

complaint and email had not been provided during discovery and argued that 

the State’s impeachment of Appellant with them was prejudicial, particularly 

since the court would not allow the physical documents to be introduced into 

evidence in an attempt to rehabilitate Appellant’s credibility. The trial court 

acknowledged that defense counsel was alleging the State had committed a 

discovery violation, but then failed to hold a Richardson hearing. 

In its closing argument, the State again used the complaint and the 

email to collaterally impeach Appellant’s credibility by insinuating that he had 

lied to the jury when he denied authoring the complaint and the email, and 

had fabricated the complaint in anticipation of trial. After closing arguments, 

the jury found Appellant guilty on all counts. Because he had no prior record, 

he was sentenced to the minimum sentence, which was a three-year 

minimum mandatory department of corrections sentence. 
6

On appeal, Appellant asserts that the State violated its discovery 

obligations under rule 3.220 when it failed to produce the complaint and 

email to the defense during discovery and then proceeded to use those 

documents to challenge his credibility during cross-examination, as well as 

in its closing argument. Appellant contends that the trial court erred when it 

failed to conduct a Richardson hearing after this discovery violation was 

brought to its attention. As a result, Appellant argues that this error was not 

harmless because the defense was procedurally prejudiced by the discovery 

violation. We agree.

II.

During pretrial discovery in criminal proceedings, the State is required 

to disclose “any written or recorded statements and the substance of any 

oral statements made by the defendant, including a copy of any statements 

contained in police reports or report summaries, together with the name and 

address of each witness to the statements.” See Fla. R. Crim. P. 

3.220(b)(1)(C). “Florida's criminal discovery rules are designed to prevent 

surprise by either the prosecution or the defense.” Scipio v. State, 928 So. 

2d 1138, 1144 (Fla. 2006) (quoting Kilpatrick v. State, 376 So. 2d 386, 388 

(Fla. 1979)). The purpose of these rules “is to assist the truth-finding function 
7

of our justice system and to avoid trial by surprise or ambush.” Id. (citing 

State v. Evans, 770 So. 2d 1174, 1182 (Fla. 2000)).

When it is brought to the court’s attention that the State has failed to 

comply with its discovery obligations under rule 3.220, the trial court “must 

conduct a Richardson hearing to determine if the defendant has been 

prejudiced.” Lynch v. State, 925 So. 2d 444, 445 (Fla. 5th DCA 2006) (citing 

Evans, 770 So. 2d at 1174; Stimus v. State, 886 So. 2d 996 (Fla. 5th DCA 

2004)). Where a trial court fails to conduct a Richardson hearing upon 

learning of a discovery violation, the question becomes whether the error is 

harmless. Bess v. State, 208 So. 3d 1213, 1214 (Fla. 5th DCA 2017). 

The Florida Supreme Court has articulated a framework for analyzing 

whether the trial court’s error in failing to hold a Richardson hearing was

harmless. State v. Schopp, 653 So. 2d 1016, 1021 (Fla. 1995); Scipio, 928 

So. 2d at 1138. In Schopp, the Court explained:

In determining whether a Richardson violation 

is harmless, the appellate court must consider 

whether there is a reasonable possibility that the 

discovery violation procedurally prejudiced the 

defense. As used in this context, the defense is 

procedurally prejudiced if there is a reasonable 

possibility that the defendant’s trial preparation would 

have been materially different had the violation not 

occurred. Trial preparation or strategy should be 

considered materially different if it reasonably could 

have benefited the defendant. In making this 

determination every conceivable course of action 
8

must be considered. If the reviewing court finds that 

there is a reasonable possibility that the discovery 

violation prejudiced the defense or if the record is 

insufficient to determine that the defense was not 

materially affected, the error must be considered 

harmful. In other words, only if the appellate court 

can say beyond a reasonable doubt that the defense 

was not procedurally prejudiced by the discovery 

violation can the error be considered harmless.

Schopp, 653 So. 2d at 1020–21 (emphasis added). The burden is on the 

State to show that the error is harmless. Id. at 1020 (citing State v. DiGuilio, 

491 So. 2d 1129, 1138 (Fla. 1986)). However, “if the record is insufficient for 

the appellate court to determine that the defense was not prejudiced by the 

discovery violation, the State has not met its burden and the error must be 

considered harmful.” Id.

This can be a high burden for the State, because “in the vast majority 

of cases it will be readily apparent that the record is insufficient to support a 

finding of harmless error.” Id. at 1021. The reason for this is when the trial 

court fails to hold a Richardson hearing, the defendant has not been given 

an opportunity to show prejudice on the record in regard to the ability to 

prepare for trial. See Scipio, 928 So. 2d at 1146 (“One cannot determine 

whether the state’s transgression of the discovery rules has prejudiced the 

defendant (or has been harmless) without giving the defendant the 

opportunity to speak to the question.” (quoting Schopp, 653 So. 2d at 1021)). 
9

In particular, there is no opportunity for the defendant to show that the trial 

preparation would have been materially different had the violation not 

occurred. Id. Thus, in the absence of a Richardson hearing, the reviewing 

court is “essentially left to speculate as to what strategy the defense would 

have adopted” if the discovery violation had not occurred. Id. at 1150.

Because of this, the Court “emphasized that a finding of harmless error 

should be ‘the exception rather than the rule.’” Id. at 1148 (quoting Schopp, 

653 So. 2d at 1020).

It is additionally worth noting that the harmless error analysis in this 

context focuses on the procedural prejudice from the discovery violation and 

not whether the violation would have substantively made a difference in the 

verdict. Id. at 1149–50 (stating that an analysis focusing on “whether the 

discovery violation would have made a difference in the verdict” would have 

the effect of making “the standard for procedural prejudice identical to 

substantive prejudice”). As a result, the relevant inquiry is “whether there is 

a reasonable possibility that the discovery violation ‘materially hindered the 

defendant’s trial preparation or strategy.’” Id. at 1150 (quoting Schopp, 653 

So. 2d at 1020). Thus, “only if the appellate court can determine beyond a 

reasonable doubt that the defense was not procedurally prejudiced by the 
10

discovery violation can the error be considered harmless.” Id. (citing Schopp, 

653 So. 2d at 1021). 

III.

It is clear from the record before us that there was a discovery violation 

where the State failed to produce the complaint and email at issue to the 

defense during discovery. The complaint and email contained statements 

alleged to have been made by Appellant. The State then proceeded to use 

these documents at trial both during Appellant’s cross-examination and 

during its closing argument. The discovery violation was brought to the trial 

court’s attention through objections made by Appellant’s counsel. As a result, 

the court was required to hold a Richardson hearing, but it failed to do so. 

Therefore, in determining whether the error was harmless, we must 

determine whether we can ascertain, beyond a reasonable doubt, that “the 

discovery violation [did not] ‘materially hinder[] the defendant’s trial 

preparation or strategy.’” Scipio, 928 So. 2d at 1150.

The evidence in this case consisted almost entirely of eyewitness 

testimony; thus, the credibility of the witnesses was of the utmost importance 

and the key to Appellant’s defense. This was especially true regarding 

Appellant’s own trial testimony. The State used the internal complaint and 

the email in an attempt to impeach Appellant by claiming that he made prior 
11

inconsistent statements in regard to his testimony that he gave at trial.

Defense counsel, in order to try and cure the harm from the discovery 

violation, then attempted to introduce the complaint and email into evidence 

to demonstrate that Appellant did not create the documents. However, the 

State objected and argued that they should not be introduced on hearsay 

grounds. The State never authenticated the complaint or the email and never 

established that Appellant created or made the statements alleged in the 

documents. The State then used both the internal complaint and the email in 

closing arguments, arguing that Appellant was not truthful when he claimed 

he did not author either the internal complaint or the email. 

These actions by the State prejudiced Appellant, as it sought to impugn 

his credibility. As a result, these discovery violations placed Appellant at a 

clear procedural disadvantage, particularly in light of the trial court’s refusal 

to allow defense counsel to introduce the documents into evidence to 

rehabilitate his credibility. It is because of this extreme prejudice to Appellant, 

that situations like this are the very types of discovery violations the discovery 

rules and courts seek to avoid, so there is not surprise and “trial by ambush.” 

See Id. at 1151 (quoting Binger v. King Pest Control, 401 So. 2d 1310, 1314 

(Fla. 1981)).
12

We further observe that Schopp requires us to consider “every 

conceivable course of action” in making our determination regarding whether 

Appellant’s “trial preparation or strategy would have been materially 

different” absent the State’s discovery violation. See Schopp, 653 So. 2d at 

1020. Indeed, on appeal, Appellant suggests several trial tactics his counsel 

could have employed had the discovery violation not occurred. First, 

Appellant asserts that if the complaint and email had been properly disclosed 

to the defense, defense counsel could have filed a motion in limine to exclude 

them as they could not be properly authenticated. Appellant also argues that 

since he disputed creating either of these documents, defense counsel could 

have investigated, deposed, and presented at trial the records custodian for 

the documents and/or the individual who actually authored them to refute the 

State’s suggestion that he was lying about having created the documents. 

Finally, Appellant notes that if he had been apprised that the State was 

seeking to use the complaint and email at trial, he could have been prepared 

to address them in his direct testimony, which would have minimized the 

damaging effect of the documents on his credibility. Thus, after considering 

“every conceivable course of action,” the record shows there is a “reasonable 

possibility that the defendant’s trial preparation or strategy would have been 

materially different had the violation not occurred.” See Id.
13

It should be noted that, although Appellant has proposed various 

courses of action that defense counsel could have taken to mitigate the 

damaging effects of the discovery violation, it is ultimately the State’s burden

on appeal to show that the error is harmless beyond a reasonable doubt.

See Id. at 1020–21. The State has not pointed to anything in the record to 

show that the defense was not prejudiced by the discovery violation. In fact, 

to the contrary, the record shows that the State capitalized on the defense’s 

unpreparedness to handle the discovery violation and then exploited the 

discovery violation to gain a strategic advantage at trial.

In addition, once the trial court failed to hold a Richardson hearing, this

deprived Appellant of an opportunity to show prejudice on the record; and

without a sufficient record, we are now “essentially left to speculate as to 

what strategy the defense would have adopted” if the discovery violation had 

not occurred. Scipio, 928 So. 2d at 1150. Thus, the State has failed to show 

that there is harmless error and demonstrate that this case is “the exception 

rather than the rule.” See Id. at 1147–48 (finding that “the vast majority of 

cases” will not have a record sufficient “to support a finding of harmless error”

(quoting Schopp, 653 So. 2d at 1021)). Because, on this record, we cannot

say beyond a reasonable doubt that Appellant was not procedurally 
14

prejudiced by the State’s actions, we find the State has failed to meet its

burden.

IV.

Under these circumstances, we cannot determine that the State’s 

discovery violations did not materially hinder Appellant’s trial preparation or 

strategy; and we thus cannot find the error harmless beyond a reasonable 

doubt. Accordingly, we reverse Appellant’s judgment and sentence and 

remand for a new trial. 

REVERSED and REMANDED.

MAKAR and JAY, JJ., concur.