In JOHNSON v. STATE, No SC09-1045 (Fla. Jan 5, 2012), the Court held that when a public defender in a district court of appeal certifies a conflict in representing codefendants, under § 27.511 Florida Statutes
(2008) the district court is not required to automatically appoint the Office of Criminal Conflict and Civil Regional Counsel. Instead the district court should review the motion for legal sufficiency and decide whether to allow the public defender to continue or to withdraw. However the Regional Counsel does not have standing to object to an order finding a conflict and appointing Regional Counsel for the purpose of appeal.
In BRYANT v. STATE, No. 2D11-2185 (Fla. 2d DCA Jan. 6, 2012), the district court reviewed the procedure to be followed where a defendant files multiple motions for post-conviction relief pursuant to Fla. R.
Crim. P. 3.850. The court sought to avoid the situation where a new and potentially meritorious claims could be denied review due to a previous motion pending on appeal. That situation could result in denial of a remedy altogether due to the two year time limit contained in the rule. The court held that where the most recently filed rule 3.850 motion raises issues separate from those raised in a previous motion, the postconviction court has jurisdiction to consider the subsequent motion and to either stay it or rule upon it without the need to obtain permission from the district court.
In CLIFF BERRY, INC. and SMITH v. STATE, Nos. 3D09-389 and 3D09-473 (Fla. 3d DCA Jan. 4, 2012), the district court held that a defendant in a criminal case is entitled to have the jury instructed on the law applicable to his theory of defense if the theory is legally valid and there is any evidence in the record to support it. It is incumbent upon the court to charge the jury on every defense which is recognized by the law and sustained by a version of the testimony which the jury has a right to accept. It is inappropriate for the trial court to weigh the evidence for the purpose of deciding whether to give a requested instruction on the theory of defense; if the evidence at trial suggests the defense, the court should give the instruction. Those cases holding that a defendant was not entitled to an instruction on his good faith theory of defense are premised on either the complete and total lack of evidence to support the defense (no evidence, as opposed to any evidence) or a finding that the evidence supporting the defense was demonstrably false or inconsistent with honest conduct (and thus, not a version of the evidence that the jury was entitled to accept).
Standard jury instructions are presumed correct and preferred over special instructions. However, the use of a standard instruction does not relieve the trial court of its duty to ensure that the instruction accurately and adequately conveys the law applicable to the circumstances of the case. A defendant is entitled to a special jury instruction upon showing that (1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing. A court abuses its discretion by failing to give such a special instruction.
In addition, the district court held that once a trial court has notice of a discovery violation, the court must conduct a hearing pursuant to the rule in Richardson v. State, 246 So. 2d 771 (Fla. 1971), to inquire about the circumstances surrounding the state's violation of the discovery rules and examine the possible prejudice to the defendant.
When the court learns of a possible discovery violation, it must conduct a Richardson hearing in order to determine whether there has been an actual discovery violation even if the defendant does not request a Richardson hearing. The defendant is not required to use the word "Richardson" or "objection" or any other magic words. The rule only requires that the possible discovery violation be brought to the attention of the trial court during the course of the proceedings. Slip opinion at 34. A Richardson inquiry is required as soon as the issue is raised. A post-trial inquiry is not sufficient. Slip opinion at 40. In conducting a Richardson hearing, the trial court must inquire as to whether the violation (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party's trial preparation. The defense is 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. Trial preparation or strategy should be considered materially different if it reasonably could have benefitted the defendant. In a Richardson inquiry the state is required to demonstrate that the undisclosed evidence did not prejudice the defendant; the defendant is not required to show prejudice. When a prosecutor is aware before trial that an important state witness will change his testimony significantly after he has been deposed, and the changed testimony is significantly more incriminating, the state commits a Richardson violation by failing to inform the defendant when it learns of the witness' changed testimony.
