Full Opinion

Third District Court of Appeal State of Florida Opinion filed April 15, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-441 Lower Tribunal No. 16-1357A ________________ D.G., a juvenile, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Rosa C. Figarola and Jason Dimitris, Judges. Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Chief Assistant Public Defender, and Fan Li, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee. Before EMAS, C.J., and SCALES and MILLER, JJ. SCALES, J. D.G., a juvenile, appeals an order revoking his probation for failing to attend and complete substance abuse and anger management counseling. D.G. argues that: (i) the trial court failed to conduct an adequate Richardson 1 hearing when the State late-listed a key witness for the probation violation hearing, procedurally prejudicing D.G.; and (ii) the State failed to present any non-hearsay evidence that D.G.’s failure to attend and complete the counseling programs was willful and deliberate. Finding no reversible error on either issue, we affirm. I. RELEVANT FACTS AND PROCEDURAL HISTORY In 2016, D.G., then fourteen years old, pled guilty to attempted strong-armed robbery, a third-degree felony, and was placed on probation for five years. D.G.’s probation order reflects that D.G. was required to attend and complete both anger management and substance abuse counseling. The counseling sessions took place at AMI Kids, a facility located in the Homestead area of Miami-Dade County. In February 2018, the State filed an amended affidavit/petition for violation of probation, alleging, in part, that D.G. had violated the terms of his probation by failing to participate in and complete the anger management and substance abuse counseling. 1. The alleged discovery violation 1 Richardson v. State, 246 So. 2d 771 (Fla. 1971). 2 D.G.’s probation violation hearing was originally set for Thursday, August 30, 2018, at 10:45 a.m. At the beginning of the hearing, defense counsel objected to the State’s intention to call Clancy Strong, the case manager supervisor at AMI Kids, as a witness, because Strong was not listed on the State’s witness list.2 The prosecutor responded that he had been reassigned the case from a different prosecutor and that he was unaware that Strong was not on the State’s witness list. After looking at the witness list, the prosecutor admitted to a discovery violation, conceded that the probation violation hearing should not go forward, and requested that the hearing be reset for a later date. As further explanation, the prosecutor informed the lower court that the day prior to the hearing, on August 29, 2018, the State had learned that D.G.’s prior case manager from AMI Kids, Shaniqua Jones, had departed and that Strong would be testifying in Jones’s place. The prosecutor stated that he thought the State’s witness list had been updated to include Strong. The trial court then looked at its schedule and reset the probation violation hearing for September 4, 2018, at 10:15 a.m. Defense counsel did not object or otherwise comment in response to the court. The prosecutor promised to update immediately the State’s witness list to include Strong. 2 Strong was present in the courtroom when defense counsel raised the objection. 3 D.G.’s probation violation hearing commenced on September 4, 2018, at 11:11 a.m. At the beginning of the hearing, defense counsel stated that she had just conducted a partial hallway interview of Strong, but that she was not prepared to go forward with the hearing. Defense counsel objected to Strong testifying as a witness because the State3 had waited until August 31, 2018 – the day after the cancelled hearing – at 5:02 p.m., to provide an updated State’s witness list. Defense counsel stated that, on receiving the updated list, defense counsel called AMI Kids and tried to reach Strong, but was told that Strong was not then at work. The trial court rejected defense counsel’s argument, noting that defense counsel was aware at the prior, cancelled hearing that Strong was going to be called as a State’s witness on behalf of AMI Kids. Defense counsel argued that she did not have time to interview Strong because defense counsel had other hearings scheduled the day of the cancelled hearing. The trial court did not accept this explanation, noting that Strong was both present in the courtroom and available to meet with defense counsel immediately after the trial court cancelled the prior hearing. The court then conducted the probation violation hearing. 2. The probation violation hearing testimony 3 The record reflects that, after the August 30, 2018 hearing, the case was reassigned to yet another prosecutor who both filed the updated State’s witness list and participated at the September 4, 2018 probation violation hearing. 4 Three individuals testified at the probation violation hearing: (i) Betty Fertil, D.G.’s juvenile probation officer; (ii) Clancy Strong, the case manager supervisor at AMI Kids; and (iii) D.G. Probation Officer Fertil testified, in relevant part, that she had explained to D.G. both that D.G. needed to attend anger management and substance abuse counseling as conditions of his probation, and that D.G. understood this. She testified that, nevertheless, D.G. failed to attend counseling sessions for either program. Clancy Strong, the case manager supervisor at AMI Kids, testified that D.G. had been terminated from anger management and substance abuse counseling for "aggressive, disrespectful, and defiant behavior.” Strong testified that D.G.’s unruly behavior had been discussed with him on multiple occasions prior to his termination. In particular, Strong testified she (Strong) had told D.G. that he would be terminated from both counseling programs if his behavior did not improve, and that D.G. indicated to Strong that he understood. Strong testified that D.G.’s behavior did not improve and he was terminated from both counseling programs for this reason. D.G. testified that he was aware that he had to go to substance abuse and anger management counseling as conditions of his probation. D.G. said his behavior was not an issue during his time at AMI Kids, and that he did not remember whether Strong had ever talked with him about his behavior. When asked about his 5 attendance at both counseling programs, D.G. said he neither went to the counseling sessions, nor completed the counseling programs. The trial court revoked D.G.’s probation, adjudicated him delinquent, and placed him in a non-secure residential program. II. STANDARDS OF REVIEW Where a proper Richardson inquiry has been conducted, the trial court’s ruling on a discovery violation is reviewed for an abuse of discretion. See McDugle v. State, 591 So. 2d 660, 661 (Fla. 3d DCA 1991). The trial court’s finding of a willful and substantial violation of probation term is reviewed for competent, substantial evidence. See Savage v. State, 120 So. 3d 619, 622 (Fla. 2d DCA 2013). The trial court’s decision to revoke probation based on such evidence is reviewed for an abuse of discretion. See Broome v. State, 96 So. 3d 440, 441 (Fla. 4th DCA 2012). III. ANALYSIS 1. The trial court did not abuse its discretion with respect to the State’s discovery violation Where, as here, the State commits a discovery violation, the trial court should conduct a Richardson hearing. A proper Richardson inquiry requires the lower court to consider three factors: (i) whether the State’s discovery violation was willful or inadvertent; (ii) whether the State’s discovery violation was trivial or substantial; and (iii) whether the State’s discovery violation prejudiced defense counsel’s ability to prepare for trial. See Flores v. State, 872 So. 2d 441, 443 (Fla. 4th DCA 2004). 6 Absent a proper inquiry, reversal is required unless the State can demonstrate harmless error. Id. In this appeal, D.G. argues that the trial court failed to adequately consider any of the three Richardson factors at the August 30, 2018 hearing, prior to cancelling the hearing. Assuming this to be true, D.G. argues further that the State cannot demonstrate harmless error because, in resetting the probation violation hearing to September 4, 2018, the lower court neglected to take into account defense counsel’s busy schedule and the short period of time the court provided defense counsel to interview Strong. We disagree. A fair reading of the August 30, 2018 hearing transcript reflects that the trial court – albeit without specifically referencing Richardson – adequately considered all three Richardson factors. With respect to the first factor, the prosecutor admitted the State committed a discovery violation, explaining to the trial court that witness Strong’s omission from the State’s witness list was an oversight due to a recent change in prosecutors on the matter, as well as the recent departure of D.G.’s case worker, Shaniqua Jones, from AMI Kids. The trial court accepted this explanation, thus concluding that the State’s discovery violation was inadvertent. As to the second factor, the prosecutor informed the trial court that, because of the discovery violation, the August 30, 2018 hearing should not go forward and requested the probation violation hearing be reset to afford defense counsel the 7 opportunity to interview witness Strong. In essence, the prosecutor conceded that the discovery violation was substantial. Finally, as to the third factor, the trial court clearly took prejudice to defense counsel into account at the August 30, 2018 hearing. The lower court reset the matter to September 4, 2018, so that defense counsel could interview witness Strong. D.G. now argues, as defense counsel did below at the September 4, 2018 probation violation hearing, that five days was not enough time to interview Strong because defense counsel had a busy schedule on August 30, 2018, and much of the time elapsed over a holiday weekend. D.G. also argues that defense counsel was somehow precluded from seeking out Strong until after the State updated its witness list on August 31st. On this record, we do not agree. When the trial court reset the probation violation hearing from August 30th to September 4th, defense counsel did not object, or otherwise comment to the lower court on the amount of time given. Moreover, Strong was in the courtroom when the court cancelled the August 30th hearing. Upon cancellation of this hearing, defense counsel had the opportunity either to interview Strong immediately or to schedule an interview prior to the reset hearing, but failed to do either. In sum, we conclude that the trial court conducted an adequate Richardson hearing in this case. On this record, we conclude the trial court did not abuse its discretion either by resetting D.G.’s probation violation hearing to September 4, 8 2018, or, at the September 4, 2018 hearing, by rejecting defense counsel’s argument that she had not been given adequate time to interview Strong. 2. The State presented non-hearsay evidence that D.G.’s failure to attend substance abuse and anger management counseling sessions was willful and deliberate “To support a revocation of probation, there must be a showing that the probationer deliberately and willfully violated one or more of its terms.” Thomas v. State, 672 So. 2d 587, 589 (Fla. 4th DCA 1996). Where, as here, revocation of probation is based on the failure to “successfully complete a designated rehabilitation program, some evidence must be submitted to show that the defendant was in some manner responsible for such failure.” Id. (quoting Miller v. State, 661 So. 2d 353, 354-55 (Fla. 4th DCA 1995)) (emphasis added); see also Rubio v. State, 824 So. 2d 1020, 1021-22 (Fla. 5th DCA 2002) (“In the context of a failure to complete a substance abuse program, the failure is a willful violation if the failure can be shown to be the fault of the probationer.”). “[F]or a probationer to be at fault or responsible for his dismissal [from a rehabilitation program], he must at least be informed that dismissal is a potential sanction for the behavior at issue.” Johnson v. State, 58 So. 3d 411, 412 (Fla. 1st DCA 2011). Here, D.G. does not dispute that he was advised that he needed to attend and complete anger management and substance abuse counseling as conditions of his probation. Nor does D.G. dispute that he failed to attend and complete the 9 counseling sessions. Instead, D.G. argues that the State failed to present any non- hearsay testimony below that his failures were willful and deliberate. See Stewart v. State, 926 So. 2d 413, 415 (Fla. 1st DCA 2006) (stating that a finding of willfulness cannot be based solely on hearsay testimony). We disagree. Clancy Strong, the case manager supervisor at AMI Kids, testified that she (Strong) spoke directly with D.G. about his behavioral issues and specifically informed D.G. that he would be terminated from anger management and substance abuse counseling if his behavior did not improve. D.G. indicated to Strong that he understood. Strong testified that D.G.’s behavior did not improve and that D.G. was terminated from the counseling sessions because of his continuing “aggressive, disrespectful, and defiant behavior.” The State, therefore, presented a combination of hearsay and direct evidence below that constituted competent, substantial evidence to support the trial court’s determination that D.G. willfully and deliberately violated the terms of his probation. On this record, we conclude the trial court did not abuse its discretion in revoking D.G.’s probation. IV. CONCLUSION The trial court conducted an adequate Richardson inquiry at the April 30, 2018 hearing upon being notified that the State had committed a discovery violation. The lower court did not abuse its discretion either by resetting the probation violation 10 hearing to September 4, 2018, or by conducting the probation violation hearing on that date. In addition, the State presented competent, substantial evidence that D.G. willfully and deliberately violated the terms of his probation, and the trial court did not abuse its discretion in revoking D.G.’s probation based on this evidence. For these reasons, we affirm the order revoking D.G.’s probation for failure to attend and complete substance abuse and anger management counseling. Affirmed. 11