Edward SMITH, Petitioner, v. STATE of Florida, Respondent; STATE of Florida, Petitioner, v. Edward SMITH, Respondent, 500 So. 2d 125

BARKETT, Justice. We have for review Smith v. State, 476 So.2d 748 (Fla. 3d DCA 1985), in which the district court certified a question as being of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. This case arises because the state failed to comply with our rules of discovery. At trial a police officer testified that the defendant had made a statement to her which had not been disclosed to defense counsel prior to trial in violation of Florida Rule of Criminal Procedure 3.220. Defendant objected and requested the hearing mandated by Richardson v. State, 246 So.2d 771 (Fla.1971).

The trial court, inexplicably, refused to hold a hearing. On appeal, the district court held that the trial court’s failure to conduct a Richardson hearing mandated reversal. However, it certified the following as a question of great public importance: Is a new trial required when the trial court’s failure to conduct a Richardson inquiry is, in the opinion of the reviewing court, harmless error? 476 So.2d at 749. We have addressed this issue repeatedly and consistently. See Cooper v. State, 377 So.2d 1153, 1155 (Fla.1979); Kilpatrick v. State, 376 So.2d 386, 389 (Fla.1979); Smith v.

State, 372 So.2d 86, 88 (Fla.1979); Wilcox v. State, 367 So.2d 1020, 1023 (Fla.1979); Cumbie v. State, 345 So.2d 1061, 1062 (Fla.1977). Both legal and practical considerations dictate, once again, an affirmative answer to the question posed. First, from a practical perspective, the rule of Richardson and its progeny works effectively and accommodates the various competing interests. The command of Rule 3.220(

a) is simple, clear, and direct. The state is required to disclose and provide discovery. If the state fails to discharge its duty in this regard, the trial court must inquire into the circumstances of the discovery violation and its possible prejudice to the defendant. This process contains enormous flexibility by providing a full panoply of remedies which a judge may apply if a discovery violation has occurred, including, if the evidence warrants, finding no prejudice or “harmless error” and proceeding with the trial.

We see no evidence that the clear dictates of this integral component of Florida law have imposed any significant hardship on the bench or bar or have worked any injustice. On the contrary, the requirement that a trial court merely listen and evaluate any claim of prejudice accompanied by the minor delay which most hearings or inquiries will impose on a trial is more than justified by the assurance of compliance with our rules and requirements of due process. Second, legal considerations also mandate our continued adherence to Richardson and its progeny.

The certified question in this case misapprehends the very purpose of a Richardson hearing, which is precisely to determine if a violation is, in fact, harmless. 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. We repeat what the court made clear in Wilcox. A reviewing court cannot determine whether the error is harmless without giving the defendant the opportunity to show prejudice or harm. 367 So.2d at 1023.

In Wilcox, the state sought to resist reversal by asserting that “no prejudice resulted because the trial court instructed the jury to disregard the [previously undisclosed] statement.” Id. at 1022. In rejecting this argument, this Court explained that the question of “prejudice” in a discovery context is not dependent upon the potential impact of the undisclosed evidence on the fact finder but rather upon its impact on the defendant’s ability to prepare for trial: Respondent misapprehends the nature of the prejudice Cumbie and Richardson seek to remedy.

The purpose of a Richardson inquiry is to ferret out procedural, rather than substantive, prejudice. In deciding whether this type of prejudice exists in a given case, a trial judge must be cognizant of two separate but interrelated aspects. First, the judge must decide whether the discovery violation prevented the defendant from properly preparing for trial. In this case, had petitioner known what the officer was going to say, he might have successfully excluded the testimony before trial. At the very least, advance knowledge would have given petitioner time to gather rebuttal evidence.

On the other hand, close scrutiny might have revealed that the statement had no bearing on petitioner’s defense. Without a Richardson inquiry, the trial court was in no position to make an accurate judgment as to these possibilities. Id. at 1023. See also Smith, 372 So.2d at 88 (rejecting argument that post-trial inquiry would suffice because a Richardson inquiry after remand from the appellate court is reduced to a mere guessing game). If the “trial court [is] in no position to make an accurate judgment” without giving the defendant the opportunity to show prejudice, how then can a reviewing court do so?

As this Court expressly held in Cumbie, “[a] review of the cold record is not an adequate substitute for a trial judge’s determined inquiry into all aspects of the state’s breach of the rules.” 345 So.2d at 1062. It is not adequate because the error committed is the preclusion of the very evidence necessary to make a judgment on the existence of prejudice or harm. The state is essentially asking us to disregard all concern for procedural prejudice and abandon Richardson. We can see no justification for doing so.

Alternatively, the state requests that we limit Richardson and hold that it does not apply to the admission of a previously undisclosed statement on rebuttal. The admission of the statement as rebuttal evidence does not make it any more appropriate than admitting it during direct examination. There is neither a “rebuttal” nor an “impeachment” exception to the Richardson rule. See Hicks v. State, 400 So.2d 955, 956 (Fla.1981); Kilpatrick, 376 So.2d at 388; Donahue v. State, 464 So.2d 609, 612 (Fla. 4th DCA 1985).

Accordingly, we answer the certified question in the affirmative, and approve the decision of the court below. It is so ordered. ADKINS, BOYD, OVERTON and EHRLICH, JJ., concur. McDONALD, CJ., dissents with an opinion, in which SHAW, J., concurs.