Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-5325 _____________________________ JOHN HICKS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Robert E. Long, Jr., Judge. November 10, 2021 ON MOTION FOR REHEARING B.L. THOMAS, J. Appellant’s motion for rehearing is denied. On its own motion, the court substitutes the following opinion for the previously issued opinion. Appellant appeals his judgment and sentence for capital sexual battery. We affirm Appellant’s judgment but reverse the trial court’s imposition of a fine. Appellant was charged with capital sexual battery of his daughter’s stepdaughter. In 2016, Appellant stayed with his daughter’s family. One night, Appellant went into the victim’s room, which the victim shared with her younger cousin, touched the victim’s vagina with his hand, and asked her if she wanted to go to the living room. The victim declined, and Appellant left the room. The victim switched places in the bed with her younger cousin so Appellant would not “mess with” her again. That same night, Appellant came back to her room and touched the younger cousin, thinking he was touching the victim. The next day, the victim told her stepmother about the incident. The Child Protective Team (CPT) conducted a recorded interview with the victim. Appellant filed a demand for speedy trial and moved to disqualify the victim and the younger cousin based on incompetency to testify. A hearing was held on the victim’s competency. The trial court found the victim was competent because she could recall and narrate facts and understood the difference between a truth and a lie. The victim indicated she knew there were consequences for telling a lie and promised to tell the judge the truth. The trial court also conducted a hearing on the victim’s “child hearsay” statement to the CPT Coordinator and found it admissible. The night before the jury trial, the State emailed Appellant’s trial counsel about a new witness, Ms. White. Ms. White’s testimony would contradict Appellant’s defense that he never went to the victim’s room because he and his girlfriend, Ms. Jackson, spent the night together on an air mattress in the living room. Ms. White would have testified that she was the only visitor that night, and she did not stay overnight. The discovery issue was raised before the jury was sworn. The trial court agreed to start a Richardson * hearing and found the State’s discovery violation was inadvertent. The trial court could not complete the hearing at that time because the State had not yet located the witness and was unsure whether she would testify at trial. In the middle of trial, the State informed the trial court and Appellant that its investigator had located Ms. White, who could testify the next day as a rebuttal witness. The State emphasized that it had only just learned of this witness and had not yet questioned her. Appellant’s trial counsel requested the trial court * Richardson v. State, 246 So. 2d 771 (Fla. 1971). 2 exclude the witness because of the untimely disclosure, lack of a chance to question the witness, and potential conflict because the witness was represented by the Public Defender’s Office. Appellant’s counsel argued that she was willing to proceed with the trial if the witness was excluded; otherwise, Appellant requested a mistrial be charged to the State. After a full Richardson hearing, the trial court held the State committed a discovery violation, but the violation was not willful because the State did not purposely hide the witness or hide the name from the defense. But the trial court also found that the violation was substantial and prejudicial because it went to the crux of the defense. The trial court declared a mistrial on its own motion. A new trial was scheduled for the next trial docket, which all parties agreed would be within the speedy-trial period. After the mistrial, Appellant’s trial counsel withdrew because of a conflict of interest, and Appellant was appointed new trial counsel. At the second trial, the victim testified that Appellant entered her room, committed sexual battery on her, left the room, and then re-entered the room and touched the younger cousin. The younger cousin testified and corroborated the victim’s testimony. Witnesses from the Florida Department of Law Enforcement testified they found DNA on the victim’s underwear from the night of the incident. They found the DNA contained a Y chromosome that matched Appellant’s DNA profile, but noted that over 11,000 men on the planet would also match the DNA profile. The witnesses also testified that the DNA could have transferred to the victim’s underwear if the victim and Appellant’s laundry was washed together. Appellant’s daughter, the victim’s stepmother, testified that Appellant and a female friend stayed at her home, but the female friend did not spend the night. She testified the female friend was not Ms. Jackson because she did not allow Ms. Jackson in her home. At 11 p.m., she saw Appellant sitting in the living room drinking by himself. She testified that the day after the incident, the younger cousin asked her if “papa” was supposed to be in their room, and told her that the victim had been crying. The daughter testified that the victim then told her about the incident. She also testified that although Appellant had stayed with them for three 3 to five days, his laundry was never washed with the victim’s laundry. None of Appellant’s other male relatives had been in the house. Ms. White testified that in 2016, she was in a relationship with Appellant. On the night of the incident, she was with Appellant at his daughter’s home. She remembered the date because she left town the next day for her father’s funeral. She left Appellant between 11 and 12 that night. Ms. Jackson testified for the defense that she and Appellant shared an air mattress in Appellant’s daughter’s living room that night. She testified that Appellant did not get up at any point in the night, and if he had, the movement on the air mattress would have woken her. Appellant testified that Ms. White briefly visited him that night but left before Ms. Jackson arrived at 9 p.m. He testified that Ms. Jackson stayed the night with him in the living room. He testified that he never went into the victim’s room and never touched the victim. He stated his daughter washed his clothes while he was staying with her. He testified that the victim, the younger cousin, and his daughter were lying. Appellant had a record of eight felonies or crimes of dishonesty. On rebuttal, an investigator for the prosecution testified that he was aware of a jail phone call between Appellant and Ms. White. Appellant’s counsel objected, arguing the phone call was irrelevant and unfairly prejudicial. The trial court admitted the call as a prior consistent statement. In the brief phone call, Ms. White questioned Appellant as to why he told others that she was not his girlfriend. She also told him that she left before midnight on the night in question. The jury found Appellant guilty as charged, and he was sentenced to life in prison. The trial court orally pronounced a lump-sum amount of $3,128 for costs and fines. Appellant moved to correct the sentencing error, arguing the fine and surcharge should be stricken because the fines were not orally pronounced. The trial court did not rule on the motion within sixty days, effectively denying it. Appellant moved for a new trial, which was denied. 4 Appellant now appeals his judgment and sentence, arguing that the trial court erred by sua sponte declaring a mistrial instead of excluding Ms. White’s testimony, finding the child victim was competent to testify, admitting child hearsay evidence, admitting a jail phone call between Appellant and Ms. White as a prior consistent statement, and imposing a fine and surcharge without oral pronouncement. We reject all arguments raised on appeal but write only to address the mistrial and the imposition of fees. Appellant argues the trial court erred by sua sponte declaring a mistrial without Appellant’s consent or manifest necessity where the trial court failed to consider alternatives, such as excluding Ms. White as suggested by defense counsel, before declaring a mistrial. When a defendant objects to the declaration of mistrial, “the burden is on the State to show that there was a manifest necessity for the trial court’s determination; otherwise, double jeopardy attaches.” Lebron v. State, 799 So. 2d 997, 1010 (Fla. 2001) (citing Thomason v. State, 620 So. 2d 1234, 1237–38 (Fla. 1993)). Manifest necessity requires trial judges to explore alternatives before declaring a mistrial over the objection of a defendant. See Thomason, 620 So. 2d at 1239. In Thomason, the Florida Supreme Court identified certain circumstances as manifest necessity that justified a mistrial, but the list was not exclusive. 620 So. 2d at 1239. “The manifest necessity standard must be applied on a case- by-case basis and cannot be applied mechanically.” Id. at 1237 (citing Arizona v. Washington, 434 U.S. 497, 506 (1978)). Furthermore: [W]here, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment. Strawn v. State ex rel. Anderberg, 332 So. 2d 601, 604 (Fla. 1976). Contrary to Appellant’s assertion, the record indicates that the trial court met the manifest necessity requirement to explore alternatives before declaring a mistrial. A trial court has discretion as to how to remedy a discovery violation. Johnson v. State, 25 So. 5 3d 662, 665 (Fla. 1st DCA 2010). Remedies include ordering the party to comply with discovery, granting a continuance, granting a mistrial, prohibiting the party from calling the nondisclosed witness, or enter such other order as it deems just under the circumstances. Fla. R. Crim. P. 3.220(n)(1). But “the exclusion of evidence for a discovery violation ‘should only be imposed when there is no other adequate remedy’” including declaration of a mistrial. Lowe v. State, 259 So. 3d 23, 46 (Fla. 2018) (citing McDuffie v. State, 970 So. 2d 312, 321 (Fla. 2007)). And where a violation is found to be inadvertent, excluding a witness or evidence is generally too severe. McDuffie, 970 So. 2d at 321. Here, the trial court considered the alternatives. Defense counsel refused the offer of a continuance, and counsel stated she would not be “goaded into a continuance.” When the State indicated it would call Ms. White on rebuttal, defense counsel did not propose a continuance, despite acknowledging that she was conflicted off the case. Because defense counsel refused the offer of a continuance, the other available remedies were for the trial court to declare a mistrial or exclude Ms. White. See Fla. R. Crim. P. 3.220(n)(1). Appellant argued that Ms. White should have been excluded. But because the discovery violation was inadvertent, excluding Ms. White would have been too severe a sanction. McDuffie, 970 So. 2d at 321. Thus, the trial court did not err in declaring a mistrial, because it considered and rejected the alternatives prior to declaring the mistrial. See Lebron, 799 So. 2d at 1012. There was sufficient record evidence to grant the mistrial. The trial court determined the defense should have the opportunity to talk to Ms. White because her testimony went to the crux of the defense, and defense counsel asserted that she had a conflict because she or her office had previously represented Ms. White. The record indicates that the trial court found these reasons compelling in granting the mistrial. We hold that the trial court did not abuse its discretion in granting a mistrial. See Strawn, 332 So. 2d at 604. Therefore, we affirm the trial court’s grant of sua sponte mistrial. We also reverse with directions to strike the fines imposed, as no fine may be imposed for a conviction of a capital felony. See 6 § 775.083, Fla. Stat. (2016) (“A person who has been convicted of an offense other than a capital felony may be sentenced to pay a fine . . . .”); see also § 794.011(2)(a), Fla. Stat. (2016) (stating capital sexual battery is punishable under sections 775.082 and 921.141 of the Florida Statutes, with no reference to section 775.083, Florida Statutes). AFFIRMED in part, and REVERSED in part, and REMANDED. M.K. THOMAS and TANENBAUM, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee. 7