Carlos Macias v. State of Florida

DISTRICT C OURT OF APPEAL OF T HE STATE OF FLORIDA
FOURTH DISTRICT
CARLOS MACIAS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2024-1360
[December 19, 2025]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Michael J. Linn, Judge; L.T. Case No. 562022CF002040.
Daniel Eisinger, Public Defender, and Devin Johnson, Assistant Public
Defender, West Palm Beach, for appellant.
James 	Uthmeier, 	Attorney 	General, 	Tallahassee, 	and 	Heidi 	L.
Bettendorf, 	Senior 	Assistant 	Attorney General, 	West 	Palm 	Beach, 	for
appellee.
GERBER , J.
The defendant appeals from his conviction and sentence for one count
of lewd or lascivious molestation on a person between twelve and sixteen
years old. The defendant primarily argues the circuit court erred in finding
the state did not commit a discovery violation regarding DNA evidence,
leading the circuit court to not conduct a required Richardson hearing.
We agree the circuit court erred in not finding a discovery violation and
not conducting a required Richardson hearing. 	These errors were not
harmless. 	Thus, we reverse and remand for a new trial.
We present this opinion in five sections:
1. The state’s pre-trial discovery disclosure;
2. The discovery violation allegation and the circuit court’s ruling;
3. The trial witnesses, closing arguments, and new trial motion;
4. The parties’ arguments on appeal; and
5. Our review.

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1. The State’s Pre-Trial Discovery Disclosure
The state’s pre-trial discovery disclosure included, among other things:
(a) the probable cause affidavit supporting the defendant’s arrest; and (b)
a DNA report. 	The probable cause affidavit alleged:
The victim, a 13-year-old girl … , told me she was in the
vehicle, 	back 	driver’s 	side 	passenger 	seat, 	with 	her
[grandmother], [who had driven] to the suspect’s hotel to help
him with his cell phone. 	The grandmother met the suspect,
in the parking lot, where she obtained the suspect’s cell phone
and called customer service to assist with the issue of his
phone. 	The victim stated she was sitting in the back seat,
directly behind [the grandmother]. 	While the grandmother
was working on the phone, the suspect asked the victim for
[five] dollars in change, in exchange for a [five-]dollar bill. The
victim normally carries quarters in her wallet and did give the
suspect the change in exchange for the cash.
The victim had Pokémon game cards in the vehicle she was
playing with, at which time the suspect asked what the cards
were 	and 	she 	told 	him 	they 	were 	Pokémon 	cards. 	She
explained to the suspect about the cards and gave him some
of them so they could play a game. The victim said the suspect
was leaning against the door and talking to her through her
window. The victim stated he reached through the car window
with his right hand, placed one of the cards on her upper thigh
and slid his hand up to her vagina, rubbing her vagina area
with two fingers (victim showed pointer and middle finger),
outside her pants. 	The victim said the suspect continued to
rub her vagina while she had the card on her thighs, at which
time she removed the card and placed it somewhere else in
the vehicle. The suspect then grabbed another Pokémon card,
put it on her upper thigh again, and continued using his
fingers to rub her vagina, making it look as if he was trying to
grab the card. 	The suspect touched her more than 4 times
and while doing so, placed his pointing finger over his mouth
saying, “shhhhh, don’t say anything.”
The victim said she was very scared and wanted to roll up
the window, but felt bad because he was family and she didn’t
want to hurt him. The victim stated she waited for her brother
to leave the kitchen before she disclosed the incident to her
grandmother because she was embarrassed.

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Following the defendant’s arrest, the victim’s shorts were DNA-tested
by an Indian River Crime Lab analyst. 	The analyst found DNA matching
the victim and an unknown male. The analyst drafted a report mentioning
the victim’s DNA but, for whatever reason, did not mention the male DNA.
Three months before trial, the state disclosed to defense counsel the
DNA report and identified the DNA analyst as a trial witness. In the three
months between that disclosure and the trial, the state served seven more
discovery disclosures, none of which amended the DNA report or otherwise
mentioned the male DNA finding.
In the week before trial, the state prepped the DNA analyst for trial.
The DNA analyst told the state about finding male DNA on the victim’s
shorts. 	However, the state did not serve another discovery disclosure or
otherwise serve an amended DNA report mentioning the male DNA finding.
2. The Discovery Violation Allegation and the Circuit Court’s Ruling
During opening statements, the state told the jury: 	“You’re going to
hear testimony from a DNA analyst. 	You’re going to hear that there was
presence of male DNA in the crotch area of [the victim’s] shorts. However,
you’re also going to hear there was not enough of a quantity to quantify if
it was [the defendant’s] DNA. 	All [the DNA analyst is] going to be able to
testify is that there was the presence of male DNA on [the] crotch area [of
the victim’s shorts].” (emphasis added).
Defense 	counsel 	asked 	to 	approach 	the 	bench, 	and 	the 	following
sidebar discussion ensued between the defense and the state:
[DEFENSE]: 	Judge, the [p]rosecutor has made an assertion
during his opening statement that is contained nowhere in
any of the discovery in this case. 	While we acknowledge that
there 	was 	… 	evidence 	was 	collected 	and 	forensically
examined, I provided the Court with a copy of the forensic DNA
report 	which 	says 	nothing 	… 	like 	the 	[p]rosecutor 	just
asserted 	in 	front 	of 	this 	jury. 	So 	either 	it’s 	a 	discovery
violation or its some other violation, because there is no
indication in any forensic material that we have been given
that they were able to type any kind of genetic material,
whether it was male, female, or whether it was even human
genetic material that was recovered from the shorts. 	So I am
asking the Court to conduct a Richardson hearing, please.

4
[STATE]: Judge, [defense counsel] did not take the deposition
of [the DNA analyst]. 	I spoke to [the DNA analyst] last week
and that is what [the DNA analyst] told me. 	Now, if we read
the [DNA] report, [the DNA] was not enough to quality and
quantify as a comparison. However, [the DNA analyst] did find
that there was presence of a [male] chromosome when doing
[the] analysis. Now, if [defense counsel] took the deposition of
[the DNA analyst], [defense counsel] would know that, but
[defense counsel] didn’t. And this is when I spoke to [the DNA
analyst] last week to do his pre-trial [preparation].
[DEFENSE]: Judge, I have been handling these kinds of cases
for 29 years. 	Any time they have genetic material that is
recovered from a human, and they have the ability to type it,
or … narrow the scope of who the possible contributors are, it
is included in the report. 	If that was included in the report, I
would have taken the deposition of the DNA analyst. 	It is
notably absent, and for the [p]rosecutor to claim … this is not
a 	big 	deal, 	it’s 	[defense 	counsel’s] 	fault 	because 	[defense
counsel] didn’t take [the DNA analyst’s 	deposition], when
there 	was 	never 	any 	indication 	[in 	the 	DNA 	report] 	that
anything was found which would have cued my interest in
taking this DNA analyst’s deposition.
(emphasis added).
The 	circuit 	court 	found 	the 	state 	had 	not 	committed 	a 	discovery
violation:
Well, I mean, I certainly empathize with [defense counsel],
and while I haven’t been practicing law as long as [defense
counsel] has, this is the first I’ve seen this. 	But it’s been a
couple weeks in a row the Indian River Crime Lab has done
things that I’ve never seen or even thought were possible, but
I’m not finding that there’s a discovery violation. It is going to
certainly be a point on cross-examination.
(emphasis added).
The circuit court then offered defense counsel the opportunity to depose
the DNA analyst. Defense counsel acquiesced, stating: “I mean, you found
that there’s not a discovery violation, so that is my remedy at this point.”

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The circuit court, despite having found the state had not committed a
discovery violation, nevertheless admonished the state:
I don’t know how you look at that report and not see that
this is a flag. 	I really don’t. 	I really don’t. 	You know, this is
not how cases are supposed to go down. This is not how cases
are supposed to go down.
(emphasis added).
The circuit court also found defense counsel was not responsible for
not having discovered the DNA analyst’s undisclosed test results revealing
male DNA on the victim’s shorts.
If I were in [defense counsel’s] shoes, I would have done the
same exact thing. 	I would have [seen] the [DNA] report, I
wouldn’t have gone and deposed the [DNA analyst], because
I’ve never seen this happen before, and you should know that
that’s an unusual thing to be left out of a report. 	So I mean,
frankly, a critical piece of evidence in the case.
(emphasis added).
However, despite acknowledging the DNA report had failed to mention
that male DNA was on the victim’s shorts, and despite admonishing the
state for not having addressed that omission before trial, the circuit court
repeated its finding that the omission was not a discovery violation:
But I can’t say … an omission in a report is a discovery
violation. 	And I guess now [defense counsel] is going to have
to start interviewing every Indian River Crime Lab analyst on
every one of [defense counsel’s] cases because of this, which
it’s a shame we’ve gotten to this point[.]
(emphasis added).
3. The Trial Witnesses, Closing Arguments, and New Trial Motion
The 	state’s 	trial 	witnesses 	included 	the 	victim, 	the 	victim’s
grandmother, the victim’s mother, the lead detective, and the DNA analyst.
The 	victim 	testified 	consistently 	with 	the 	probable 	cause 	affidavit
quoted above.

6
The 	victim’s 	grandmother 	testified 	she 	was 	on 	the 	phone 	and
preoccupied when the alleged incident occurred. 	Aside from overhearing
the 	victim 	ask 	the 	defendant if 	he 	knew 	how 	to 	play 	Pokémon, the
grandmother did not hear anything concerning. 	Nor did the grandmother
see anything that occurred in the backseat. 	However, the grandmother
noted that, on the way home from the hotel, the victim, who was normally
very talkative, was very quiet. 	Later that night, the victim told the
grandmother about what had happened. 	The grandmother reported the
incident to the police the following morning.
The victim’s mother testified the victim shared a bathroom with her
brother. 	The victim and the brother kept their dirty laundry in separate
piles in the shared bathroom. 	A few days after reporting the incident, a
detective retrieved the victim’s shorts from the shared bathroom.
The lead detective testified that, during an interview, the defendant
admitted to having reached into the vehicle and touching the victim’s leg.
The defendant, however, denied having touched the victim’s private area.
The day before the DNA analyst testified, defense counsel renewed his
argument that the state had committed a discovery violation in failing to
disclose that male DNA was on the victim’s shorts. 	Defense counsel cited
Florida Rule of Criminal Procedure 3.220(b)(1)(J), which requires the state,
upon the defendant’s request, “to disclose to the defendant … the following
information and material within the state’s possession or control: …
reports or statements of experts made in connection with the particular
case, including results of physical or mental examinations and of scientific
tests, experiments, or comparisons[.]” 	Fla. R. Crim. P. 3.220(b)(1)(J).
Defense counsel added: 	“[A]s far as the State’s belief that I just need to
take [the DNA analyst’s] deposition, I think that is contrary to [rule
3.220(b)(1)(J)] as the results of scientific tests are required to be disclosed.”
The following discussion then occurred between the circuit court and
the state:
[COURT]: 	[Y]ou’ve already gotten my wrath once. 	… 	I didn’t
say this was a … discovery violation, but what is concerning
to me is you know [defense counsel] didn’t know about [the
male DNA finding]. 	Why are you afraid of that? 	Why are you
afraid of that?
[STATE]: 	I’m not, Judge.

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[COURT]: 	Well, then why didn’t you tell [defense counsel
about the male DNA finding]? Because otherwise, how is this
not an issue that we’re not going to be litigating two years
down the road if the Defendant is convicted?
[STATE]: 	I did not believe that this was an issue that I would
have to tell him. 	It’s not inconsistent with the report. 	… [I]t
didn’t raise the alarm bell, Judge. … [W]hen it happens in the
future, I will disclose those types of things. 	I didn’t think I
had an obligation to.
[COURT]: 	I just don’t understand why the truth has to hide
in the shadows. … I don’t understand that. … 	And … again,
at this point in time, I can’t find that there’s a discovery
violation because again, the name of the expert was given, the
report was given with a gigantic omission in it. 	… 	It’s not
going 	to 	prevent 	[defense 	counsel] 	from 	cross-examining,
especially now that [defense counsel will] be able to depose
[the DNA analyst], but I understand why [defense counsel]
would rely on [the DNA report] and not do a deposition up
until this point. 	….
(emphasis added).
The following day, after defense counsel had conducted an impromptu
hallway deposition of the DNA analyst, the DNA analyst testified before the
jury. 	The DNA analyst testified he had swabbed the shorts’ “outside front
legs and crotch area.” 	From that swab, the DNA analyst extracted the
victim’s DNA and an unknown male’s DNA. However, the unknown male’s
DNA lacked sufficient quantity to compare to a known sample. 	Thus, the
DNA analyst could not testify the male DNA matched the defendant’s DNA.
On cross-examination, the DNA analyst conceded that the unknown
male’s 	DNA 	could 	have 	transferred 	to 	the 	victim’s 	shorts 	in 	various
different ways, including “[i]f the garment is worn by a student that goes
to a co-ed school” and “[i]f the person who wears this garment has a
brother that they share a bathroom with.”
The state’s closing emphasized that the male DNA on the victim’s shorts
contributed to proving the defendant had touched the victim’s private area:
[Y]ou heard from [the DNA analyst]. 	You heard that there
was male DNA present on her shorts. And I got up in opening.
I said, it’s going to be there. We’re not going to prove whose it

8
was. 	However, you can use your common sense that is
consistent with her being touched by [the defendant].
And look, you could argue it could have been anyone, it
could have been someone in gym class, it could have been
someone at home, or you combine [the presence of male DNA
on the victim’s shorts] with her testimony, her testimony today
and yesterday, her testimony to her family that night when
she disclosed [the defendant’s touching] initially. 	Use your
common sense.
(emphasis added).
Defense counsel presented his best argument as to why the jury should
not give any weight to the male DNA found on the victim’s shorts:
I tell you that DNA means nothing. 	Zero. 	… [The state’s
argument that] … an unquantifiable amount of [male] DNA …
[was from the defendant] … is disingenu[ous], it is misleading,
and it’s something I think is a flag for you, as jurors, to
acknowledge that there is no evidence in the case, if that’s
what [the state is] … trying to hang [its] hat on.
We know she shares a house with three other boys. 	…
Grandfather, brother, and father. We know that [the] brother
and [the victim] share the same bathroom. 	… 	Well, do we
know where that [male DNA] came from? 	No. 	… 	[The DNA
analyst] is not pointing the finger at [the defendant].
Defense counsel also argued the victim’s allegations were implausible
considering the incident had allegedly occurred during daytime, in a public
place, 	while 	her 	grandmother 	had 	been 	sitting 	in 	the 	driver’s 	seat.
Defense counsel also highlighted the lack of corroborating eyewitnesses.
The jury ultimately found the defendant guilty as charged. 	Following
the verdict, the defendant filed a motion for new trial. 	The motion argued
a new trial was warranted based on the circuit court’s errors in not finding
a discovery violation and not conducting a required Richardson hearing.
After a hearing, the circuit court denied the motion, repeating its
finding that the state had not committed a discovery violation: “[A]s far as
the DNA omission in the report, I did not find that that was a discovery
violation. Therefore, I didn’t conduct the Richardson inquiry, which [I was]
not required to at that point.” 	This appeal followed.

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4. The Parties’ Arguments on Appeal
The defendant summarizes his argument on appeal as follows:
The State admitted to withholding evidence that the DNA
testing showed the presence of male DNA on the victim’s
shorts. 	The trial court called this evidence “critical,” yet
refused to hold a Richardson hearing. 	Instead, without a
[Richardson] 	hearing, 	[the 	trial 	court] 	determined 	that 	no
discovery violation [had] occurred, rendering the [Richardson]
hearing 	unnecessary. 	This 	was 	an 	abuse 	of 	discretion,
requiring reversal for a new trial.
….
[T]he State cannot meet [the] extraordinarily high burden
[of demonstrating harmless error]. 	Had [defense counsel]
known of the DNA evidence[,] there are many things [defense
counsel] 	might 	have 	done 	differently. 	In 	terms 	of 	trial
preparation, [defense counsel] told the court [he] would have
deposed 	the 	[DNA] 	analyst. 	Instead, 	[defense 	counsel
conducted] an impromptu deposition [of the DNA analyst] in
the hallway, but that alone does not negate the prejudice.
The state summarizes its response as follows:
[The defendant] alleges a discovery violation occurred when
the DNA [analyst] … determined male DNA was present in the
sample, but that he could not identify the source of the DNA.
This 	was 	not 	a 	material 	“change” 	in 	the 	[DNA 	analyst’s]
testimony because [he] did not identify anyone, including [the
defendant], as the source of the male DNA. 	While the DNA
findings may have been more detailed, [the DNA findings]
never inculpated [the defendant].
….
[T]here 	was 	no 	discovery 	violation 	where 	the 	State
disclosed the DNA report and listed the DNA [analyst] as a
witness. 	The State’s theory all along was that [the defendant]
touched the victim between her legs over her shorts. 	The
evidence would always have shown that the victim shared a
bathroom with her brother … and that two other men lived in

10
the house. 	Thus, the evidence that the DNA was male would
never have inculpated [the defendant]. 	[Defense counsel’s]
strategic choice in failing to depose the DNA [analyst] prior to
trial cannot be used to facilitate harmful error.
….
To the extent this Court could consider the State’s failure
to 	disclose 	the 	presence 	of 	male 	DNA 	[as] 	a 	[discovery]
violation, any error was harmless. The trial court gave defense
counsel an opportunity to depose the DNA [analyst] prior to
the State’s presentation of [the DNA analyst’s] testimony at
trial ... [and] [d]efense counsel was able to effectively cross-
examine [the DNA analyst] about the male DNA finding.
5. Our Review
“Whether a possible discovery violation exists such that a Richardson
hearing is required is reviewed de novo.” 	Robinson v. State, 198 So. 3d
1088, 1092 (Fla. 4th DCA 2016).1
1 	As our sister court has observed, the standard of review of Richardson-based
issues varies depending upon the context of the particular decision being
reviewed. Curry v. State, 1 So. 3d 394, 397-98 (Fla. 1st DCA 2009). A trial court’s
decision of whether the state has committed a discovery violation, and thus
whether to grant or deny a Richardson hearing, is reviewed de novo as a matter
of law. 	Id. at 398. 	“This might be a factual issue, for example if the dispute is
whether the evidence was or was not disclosed. 	In that event, [an evidentiary]
hearing would be needed to resolve the dispute.” 	Id. 	Upon conducting a
Richardson hearing, a trial court’s decisions on (1) whether the state’s violation
was inadvertent or willful, (2) whether the violation was trivial or substantial, and
(3) what effect the violation may have had upon a defendant’s ability to properly
prepare for trial, all require the exercise of judgment, and thus are reviewed for
an abuse of discretion. 	Id.; see also Conde v. State, 860 So. 2d 930, 958 (Fla.
2003) (“A trial court’s decision on a Richardson hearing is subject to reversal only
upon a showing of abuse of discretion.”). As generally held, if any of the foregoing
decisions 	are 	based 	on 	a 	trial 	court’s 	factual 	findings 	and 	credibility
determinations, we review whether those decisions are supported by competent
substantial evidence. See, e.g., Ross v. State, 45 So. 3d 403, 414 (Fla. 2010) (“We
defer to a trial court’s findings of fact as long as [such findings] are supported by
competent, substantial evidence[.]”).
To the extent any of our court’s precedent has blended the foregoing standards
of review in Richardson-based cases, we clarify the correct standards of review
here, and expect practitioners to apply the correct standards of review as
warranted.

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A. The Error in Not Finding a Discovery Violation.
Florida Rule of Criminal Procedure 3.220(b)(1)(J) requires the state,
within fifteen days after the defendant’s service of a notice of discovery, “to
disclose to the defendant … the following information and material within
the state’s possession or control: … reports or statements of experts made
in connection with the particular case, including results of physical or
mental 	examinations 	and 	of 	scientific 	tests, 	experiments, 	or
comparisons[.]” 	Fla. R. Crim. P. 3.220(b)(1)(J).
Also, Florida Rule of Criminal Procedure 3.220(j) pertinently provides:
Continuing Duty to Disclose. 	If, subsequent to compliance
with 	the 	rules, 	a 	party 	discovers 	additional 	witnesses 	or
material that the party would have been under a duty to
disclose or produce at the time of the previous compliance,
the party must promptly disclose or produce the witnesses or
material in the same manner as required under these rules
for initial discovery. 	…
Fla. R. Crim. P. 3.220(j) (emphasis added). See also Kilpatrick v. State, 376
So. 	2d 	386, 	388 	(Fla. 	1979) 	(“Florida’s 	criminal 	discovery 	rules 	are
designed to prevent surprise by either the prosecution or the defense. [The
rules’] purpose is to facilitate a truthful fact-finding process.”).
Applying these rules here, the state committed two discovery violations.
First, the DNA analyst’s testing revealed the presence of male DNA on the
victim’s shorts. 	However, contrary to rule 3.220(b)(1)(J), the DNA analyst
(a state agent) did not include that test result in the DNA report which the
state disclosed in discovery. 	Second, in the week before trial, the DNA
analyst informed the state that male DNA was on the victim’s shorts.
However, contrary to rule 3.220(j), the state did not promptly disclose that
test result to the defense. 	Instead, the state waited until its opening
statement to allege that male DNA was on the victim’s shorts.
As for why the circuit court may have found no discovery violation had
occurred, the circuit court’s comments suggest it somehow believed an
omission 	of 	information 	cannot 	constitute 	a 	discovery 	violation, 	as
opposed to an alteration of previously-disclosed information. However, we
do not know of any authority holding that an omission of information
required to be disclosed under rule 3.220(b) is not a discovery violation.
Rather, allowing the state and its agents to omit information required to
be disclosed under rule 3.220(b) would essentially negate the rule itself.

12
The circuit court’s failure to acknowledge these discovery violations was
error. 	See Chamberlain v. State, 254 So. 3d 1027, 1032 (Fla. 4th DCA
2018) (“Generally, where the State does not reveal additional witnesses or
evidence until the eve of trial or during trial, a discovery violation occurs.”).
Further, 	contrary 	to 	the 	state’s 	argument, 	the 	state’s 	discovery
violations were not waived by defense counsel’s failure to depose the DNA
analyst. 	See J.S. v. State, 277 So. 3d 270, 274 (Fla. 2d DCA 2019) (“[T]he
trial court’s focus on whether defense counsel had deposed [the witness]
was misplaced because the failure of the defense to depose a known
witness is insufficient to overcome the state’s failure to inform the defense
of a statement made by the defendant to which the witness testifies.”)
(citation and internal quotation marks omitted).
Indeed, here, even the circuit court noted: 	“If I were in [defense
counsel’s] shoes, I would have done the same exact thing. 	I would have
s[een] the [DNA] report, I wouldn’t have gone and deposed the [DNA
analyst].” 	The circuit court added: 	“I understand why [defense counsel]
would rely on [the DNA report] and not do a deposition up until this point.”
B. The Error in Not Conducting a Required Richardson Hearing.
“A Richardson hearing is required when there is a possible discovery
violation in order to flesh out whether there has indeed been a discovery
violation.” Guy v. State, 287 So. 3d 620, 625 (Fla. 4th DCA 2019) (citation
omitted). 	Here, because the circuit court erred in not finding a discovery
violation, the circuit court erred in not conducting a required Richardson
hearing.
Even if the circuit court stood by its errant finding that no discovery
violation had occurred, the circuit court still should have conducted a
Richardson hearing to establish a record of findings for us to review if we
were to conclude—as we have done here—that discovery violations had
indeed occurred. 	Further, if the circuit court had conducted a required
Richardson hearing—by applying this case’s facts to the three-pronged
Richardson 	inquiry—the 	circuit 	court 	itself 	may 	have 	realized 	that
discovery violations had indeed occurred.
To conduct a Richardson hearing, the circuit court “must inquire as to
whether the violation (1) was willful or inadvertent; (2) was substantial or
trivial; and (3) had 	a prejudicial 	effect 	on the aggrieved 	party’s trial
preparation.” Brown v. State, 165 So. 3d 726, 728–29 (Fla. 4th DCA 2015)
(internal quotation marks omitted). 	On the third prong, “the [s]tate must

13
show in the record that the defendant was not prejudiced by the discovery
violation.” 	Id. at 729 (internal quotation marks omitted).
On the first prong, the record does not indicate whether the DNA
analyst’s failure to mention finding male DNA on the victim’s shorts was
willful or inadvertent. 	However, the record indicates the state, upon
learning of this omission while prepping the DNA analyst for trial, willfully
failed to disclose that test result as required by rule 3.220(b)(1)(J) and rule
3.220(j). The state’s alleged lack of knowledge of those rules’ requirements
did not make its choice of non-disclosure to be any less willful.
On 	the 	second 	prong, 	the 	record 	indicates 	the 	state’s 	discovery
violations were substantial. 	Defense counsel, having reviewed the DNA
report which did not mention any finding of male DNA on the victim’s
shorts, went into trial expecting that the DNA report offered no probative
value of the defendant’s guilt. 	However, the finding of male DNA on the
victim’s 	shorts—not 	disclosed 	until 	the 	state’s 	opening 	statement—
permitted the state to emphasize in closing argument that “common sense”
indicated the male DNA on the victim’s shorts came from the defendant,
even if the male DNA could not be matched to the defendant specifically.
See State v. Wood, 966 N.W.2d 825, 857–58 (Neb. 2021) (“Here, the
presence of male DNA on the external vaginal swabs of the victim’s external
vaginal area made the truth of the victim’s allegations more probable, even
if the DNA did not identify [the defendant] specifically.”).
On the third prong, the record indicates the state’s discovery violations
had a prejudicial effect on defense counsel’s trial preparation. 	As stated
above, defense counsel, having reviewed the DNA report which did not
mention any finding of male DNA on the victim’s shorts, went into trial
expecting that the DNA report offered no probative value of the defendant’s
guilt. 	However, the finding of male DNA on the victim’s shorts—not
disclosed until the state’s opening statement—placed defense counsel into
a Hobson’s choice of conducting an impromptu hallway deposition of the
DNA analyst only minutes before the DNA analyst’s testimony, or doing
nothing. 	Defense counsel had no opportunity to adequately prepare to
cross-examine the DNA analyst about the male DNA finding or hire an
expert to counter the DNA analyst’s findings. 	Further, defense counsel
was 	deprived 	of 	the 	ability 	to 	adequately 	confer 	with 	the 	defendant
regarding how the male DNA finding affected the decision of whether to
proceed with trial, accept a state plea offer, or plead open to the court.
Based on the foregoing findings, if the circuit court, as stated above,
had conducted a required Richardson hearing—by applying this case’s
facts to the three-pronged Richardson inquiry—the circuit court itself may

14
have realized that discovery violations had indeed occurred. 	However, by
not 	conducting 	a 	required 	Richardson 	hearing, 	the 	circuit 	court
unquestionably erred.
C. Why the Circuit Court’s Errors Were Not Harmless
As we explained in Moon v. State, 317 So. 3d 153, 157 (Fla. 4th DCA
2021):
A 	trial 	court’s 	failure 	to 	conduct 	a 	proper 	Richardson
inquiry is not per se reversible error, but is subject to a
harmless error analysis. 	A discovery violation is harmless
only if an appellate court can determine, beyond a reasonable
doubt, that the defense was not procedurally prejudiced. The
defense is procedurally prejudiced if there is a reasonable
possibility that the defendant’s trial preparation or strategy
would have been materially different had the violation not
occurred.
An analysis of procedural prejudice considers how the
defense 	might 	have 	responded 	had 	it 	known 	about 	the
undisclosed piece of evidence and contemplates the possibility
that the defense could have acted to counter the harmful
effects of the discovery violation. The required focus is on how
the defense might have responded and not on whether the
undisclosed evidence affected the verdict.
(internal citations and quotation marks omitted). “[I]t is the State’s burden
to show that the error was harmless …. 	The state’s burden to show a
discovery violation to be harmless is extraordinarily high.” Brown, 165 So.
3d at 729 (internal citations and quotation marks omitted).
Here, based on our findings above regarding the Richardson inquiry’s
third prong, the state has failed to meet its extraordinarily high burden to
show that the circuit court’s errors in not finding a discovery violation and
not conducting a required Richardson hearing were harmless beyond a
reasonable doubt.
Conclusion
The state’s DNA analyst, contrary to rule 3.220(b)(1)(J), omitted from
the DNA report the substantial finding that male DNA was found on the
victim’s shorts. 	The prosecutor, upon being advised of this omission,
willfully failed to disclose that test result as required by rule 3.220(b)(1)(J)

15
and rule 3.220(j), and then used that evidence against the defendant at
trial. 	The circuit court, despite its repeated statements that something
was amiss, erred in not finding a discovery violation had occurred and not
conducting 	a 	required 	Richardson 	hearing. 	Those 	errors 	were 	not
harmless. Based on the foregoing, we are compelled to reverse and remand
for a new trial.
Reversed and remanded for new trial.
MAY and CONNER , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.