Briseno v. State , 449 So. 2d 312 ( 1984 )

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449 So. 2d 312 (1984)
Paul BRISENO and Danny Briseno, Appellants,
v.
STATE of Florida, Appellee.
No. 82-1571.
District Court of Appeal of Florida, Fifth District.
March 22, 1984. Rehearing Denied May 4, 1984.
Carl Jackson Moore, Palatka, and Robert Augustus Harper, Jr., Tallahassee, for appellants.

Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.

COWART, Judge.

The trial court prohibited appellant Paul Briseno from calling his daughter Vicky as an alibi witness because, while she was listed as a witness under Florida Rule of Criminal Procedure 3.220, the State had not been notified under the notice of alibi rule, Florida Rule of Criminal Procedure 3.200. In Bradford v. State, 278 So. 2d 624 (Fla. 1973), the supreme court stated that whether it is the State that fails to comply with a discovery rule or the dereliction of responsibility by defense counsel, to prevent the placement of form over substance it is necessary for a trial judge in considering motions based on alleged discovery rule violations to determine more than the mere fact question of whether a discovery rule was violated.^[1]

The record before us shows that the trial court excluded the testimony of an alibi witness because the notice of alibi rule had been violated by defense counsel. The trial *313 court's inquiry should have considered whether the discovery violation surprised the State in preparing for trial, and if so, whether reasonable means could have been employed to overcome such disadvantage without resorting to the drastic measure of excluding evidence. We reverse the conviction of appellant Paul Briseno and remand for a new trial of his case but affirm the conviction of appellant Danny Briseno because it has been represented to this court that Vicky would have presented alibi testimony as to Paul but not as to Danny.

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, C.J., and DAVIS, S.J., Jr., Associate Judge, concur.

NOTES

[1] See also Richardson v. State, 246 So. 2d 771 (Fla. 1971).