Livigni v. State, 725 So. 2d 1150 (Fla. 2d DCA 1998). · Go Syfert
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Livigni v. State, 725 So. 2d 1150 (Fla. 2d DCA 1998). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases, last quoted 2005 · …should be a last resort reserved for extreme or aggravated circumstances. at p. 1151 ✓
11 citation events (9 in the last 25 years) across 2 distinct courts.
Strongest positive: Tolbert v. State (fladistctapp, 2014-06-18)
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) Tolbert v. State
Fla. Dist. Ct. App. · 2014 · confidence medium
Casseus v. State, 902 So.2d 294, 295 (Fla. 4th DCA 2005) (quoting State v. Eaton, 868 So.2d 650, 653 (Fla. 2d DCA 2004)); see also Tomengo v. State, 864 So.2d 525, 530 (Fla. 5th DCA 2004) (stating that exclusion of a defense witness because of a defense disclosure violation is a severe sanction that should be a last resort reserved for extreme or aggravated circumstances); Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998) (stating that the severe sanction of defense witness exclusion for witness list violation should be a last resort reserved for extreme or aggravated circumstances).
discussed Cited as authority (rule) McDuffie v. State
Fla. · 2007 · confidence medium
Casseus v. State, 902 So.2d 294, 295 (Fla. 4th DCA 2005) (quoting State v. Eaton, 868 So.2d 650, 653 (Fla. 2d DCA 2004)); see also Tomengo v. State, 864 So.2d 525, 530 (Fla. 5th DCA 2004) (stating that exclusion of a defense witness because of a defense disclosure violation is a severe sanction that should be a last resort reserved for extreme or aggravated circumstances); Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998) (stating that the severe sanction of defense witness exclusion for witness list violation should be a last resort reserved for extreme or aggravated circumstances).
discussed Cited as authority (rule) PINTADO v. State
Fla. Dist. Ct. App. · 2007 · confidence medium
If a court determines that a discovery violation has indeed occurred, "it must then fashion the appropriate sanction to be invoked." Delgado, 890 So.2d at 1271 . "[E]xcluding a defense witness for failure of timely disclosure is a `severe sanction,' that `should be a last resort reserved for extreme or aggravated circumstances.'" Delgado, 890 So.2d at 1271 (quoting Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998)).
discussed Cited as authority (rule) Delgado v. State
Fla. Dist. Ct. App. · 2005 · confidence medium
Nevertheless, excluding a defense witness for failure of timely disclosure is a "severe sanction," that "should be a last resort reserved for extreme or aggravated circumstances." Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998); see also Tomengo, 864 So.2d at 529 ; State v. Powell, 566 So.2d 588 (Fla. 3d DCA 1990).
cited Cited as authority (rule) State v. Eaton
Fla. Dist. Ct. App. · 2004 · confidence medium
Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998); State v. Schwartz, 605 So.2d 1000 (Fla. 2d DCA 1992); Wilkerson v. State, 461 So.2d 1376, 1379 (Fla. 1st DCA 1985).
discussed Cited as authority (rule) Tomengo v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
Excluding a defense witness because the defense failed to disclose the witness, or to timely disclose the witness, is a "severe sanction" that "should be a last resort reserved for extreme or aggravated circumstances." Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998).
discussed Cited as authority (rule) Wheeler v. State
Fla. Dist. Ct. App. · 2000 · confidence medium
Although Florida Rule of Criminal Procedure 3.220(d) requires the defense to disclose the names and addresses of all witnesses it expects to call at trial, the sanction of excluding a defense witness for a discovery violation is a "severe sanction" that "should be a last resort reserved for extreme or aggravated circumstances." Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998); M.N. v. State, 724 So.2d 122 (Fla. 4th DCA 1998); Taylor v. State, 643 So.2d 1122 (Fla. 3d DCA 1994).
discussed Cited "see" Anthony Bryant v. State of Florida
Fla. Dist. Ct. App. · 2016 · signal: see · confidence high
See Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998) (“[Ojften a very brief recess, during which the parties work cooperatively to address the situation, provides sufficient preparation for the newly discovered evidence.
discussed Cited "see" Rodriguez v. State
Fla. · 2006 · signal: see · confidence high
See Tomengo v. State, 864 So.2d 525, 529 (Fla. 5th DCA 2004) ("Excluding a defense witness because the defense failed to disclose the witness, or to timely disclose the witness, is a `severe sanction' that `should be a last resort reserved for extreme or aggravated circumstances.'") (quoting Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998)).
cited Cited "see" R.D. v. State
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Livigni v. State, 725 So.2d 1150 (Fla. 2d DCA 1998); Comer v. State, 730 So.2d 769 (Fla. 1st DCA 1999); C.D.B. v. State, 662 So.2d 738 (Fla. 1st DCA 1995).
Retrieving the full opinion text from the archive…
Thomas Gaetano LIVIGNI, Appellant,
v.
STATE of Florida, Appellee.
97-00752.
District Court of Appeal of Florida, Second District.
Nov 6, 1998.
725 So. 2d 1150
1998 WL 770622
Fulmer.
Cited by 10 opinions  |  Published

James Marion Moorman, Public Defender, Bartow, and Brad Permar, Assistant Public Defender, Clearwater, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.

FULMER, Judge.

Thomas Gaetano Livigni appeals his convictions for aggravated battery and obstructing an officer without violence. Because we agree with Livigni's contention that the trial court improperly excluded the testimony of a defense witness, we reverse and remand for a new trial.

The defense listed Smith as a witness a week prior to trial, but had not been able to subpoena her. When Smith showed up at the court during trial, the State argued a discovery violation and asked the court to strike the witness based on the fact that the defense had not served Smith. The court recessed to allow the State to depose Smith. When the court reconvened, the State argued it had been prejudiced and the court ruled that Smith would be excluded.

Under Florida Rule of Criminal Procedure 3.220(d)(1)(A) & (j), a defendant has a continuing duty to furnish to the prosecutor the name and address of a witness[*1151] whom the defendant expects to call at trial. When a disclosure obligation is violated, the trial court is required to make an adequate inquiry into all the circumstances, including whether the violation was inadvertent or wilful, trivial or substantial, and whether noncompliance with the rule has prejudiced the ability of the opposing party to properly prepare for trial. See Richardson v. State, 246 So.2d 771, 775 (Fla.1971). Late discovery or location of a witness does not constitute prejudice per se. See Weiand v. State, 701 So.2d 562, 564 (Fla. 2d DCA 1997), review granted, No. 91,925, ___ So.2d ___ (Fla. Mar. 24, 1998). "[O]ften a very brief recess, during which the parties work cooperatively to address the situation, provides sufficient preparation" for the newly discovered evidence. Id. However, where there is no wilful discovery violation, the court should not consider sanctions.

Here, the trial court erred by imposing the sanction of exclusion because there was no showing of a discovery violation. This error was not harmless because the aggravated battery charge turned on a credibility contest between the defendant and the victim, and the excluded witness would have impeached the victim's credibility. See Dukes v. State, 442 So.2d 316, 317 (Fla. 2d DCA 1983) (error not harmless where trial court excluded defense witness whose testimony would have supported the defendant's credibility). Furthermore, even if a discovery violation had been demonstrated, the severe sanction of witness exclusion should be a last resort reserved for extreme or aggravated circumstances. See State v. Schwartz, 605 So.2d 1000 (Fla. 2d DCA 1992).

Accordingly, we reverse the judgment and sentence and remand for a new trial.

BLUE, A.C.J., and CASANUEVA, J., concur.