Sullivan v. State of Florida

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
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No. 1D2025-0433
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H ENRY SULLIVAN JR.,
Appellant,
v.
STATE OF FLORIDA ,
Appellee.
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On appeal from the Circuit Court for Escambia County.
John Miller, Judge.
October 14, 2026
R OWE , J.
Henry Sullivan Jr. appeals his judgment and sentence for
possession of a controlled substance. He argues that the trial court
erred when it failed to conduct a proper inquiry after a discovery
violation by the State and when it failed to grant his motion for
mistrial. 	Sullivan 	asserts 	that 	his 	defense 	was 	procedurally
prejudiced by the State’s late disclosure of statements between law
enforcement 	and 	Sullivan 	about 	a 	substantial 	assistance
agreement. We reverse and remand for a new trial.
In May 2023, Pensacola Police Department (PPD) officers
conducted a traffic stop after they saw Sullivan roll through a stop
sign. 	The 	officers 	searched 	Sullivan’s 	pockets 	and 	found 	two
baggies 	containing 	a 	white 	powdery 	substance. 	The 	officers

submitted the baggies to their evidence department. But Sullivan
was not arrested that night. In January 2024—eight months after
the traffic stop—Sullivan was arrested. And a few weeks later,
PPD sent the two baggies recovered from Sullivan to the Florida
Department of Law Enforcement (FDLE) for testing. The State
charged Sullivan with possession of a controlled substance, and
the case went to trial.
In the opening statement, the defense emphasized the nine-
month delay between when the police seized the baggies from
Sullivan and when they sent the contents of the baggies to FDLE
for testing. The defense suggested that the delay between the
traffic 	stop 	and 	the 	evidence’s 	submission 	to 	FDLE 	created
reasonable doubt as to Sullivan’s guilt.
Two PPD officers and an FDLE laboratory analyst testified for
the State. The officers described the traffic stop. The analyst
explained how she determined that the substance submitted to
FDLE 	was 	cocaine. 	Defense 	counsel 	cross-examined 	all 	three
witnesses about their handling of the baggies during the eight
months between the traffic stop and the State filing charges
against Sullivan.
Because the defense’s cross-examination was designed to call
into question the chain of custody and handling of the baggies
during the eight-month delay, the State asked to proffer testimony
from one of the officers to explain the delay. The court allowed the
proffer. The officer explained that Sullivan was not immediately
arrested after the traffic stop because Sullivan agreed to act as a
confidential informant and provide substantial assistance leading
to the arrest of others. But in the months that followed, Sullivan
failed 	to 	provide 	law 	enforcement 	with 	any 	significant 	leads.
Sullivan was then arrested in January 2024.
Immediately 	after 	the 	proffer, 	the 	defense 	requested 	a
Richardson∗ inquiry, arguing that the State’s failure to disclose the
substantial assistance agreement was a discovery violation. The
∗ Richardson v. State, 246 So. 2d 771 (Fla. 1971).

State responded that it learned of the agreement only after the
defense began questioning the officers about the chain of custody.
The trial court determined no discovery violation occurred
because the State had just learned about the agreement and
Sullivan was not prejudiced by the late disclosure. The court
allowed the State to present the officer’s proffered testimony about
the chain of custody and delay issues that the defense had raised.
The State rested.
The 	defense 	called 	the 	girlfriend 	of 	Sullivan’s 	son. 	She
testified that Sullivan’s son placed the baggies in Sullivan’s pocket
without his knowledge. Then, the defense rested and moved for a
mistrial based on the alleged discovery violation. The court denied
the motion. The jury found Sullivan guilty of possession of a
controlled substance, and the trial court sentenced him to sixty
months in prison. This appeal follows.
Sullivan argues that the trial court reversibly erred when it
failed to conduct an adequate Richardson inquiry and when it
denied his motion for mistrial. Because the State violated the
discovery 	rules 	by 	not 	disclosing 	the 	substantial 	assistance
agreement, he contends that his defense was prejudiced by the
failure to disclose the agreement.
The 	State’s 	failure 	to 	disclose 	the 	substantial 	assistance
agreement until mid-trial was a discovery violation. The State
must 	disclose 	“any 	written 	or 	recorded 	statements 	and 	the
substance of any oral statement made by the defendant.” Fla. R.
Crim. 	P. 	3.220(b)(1)(C). 	Here, 	there 	is 	no 	dispute 	about 	the
statements by Sullivan accepting the officers’ proposal to act as a
confidential informant. That the prosecutor did not know of the
statements until trial is irrelevant. Prosecutors are charged with
constructive knowledge of information known by police officers.
Gorham v. State, 597 So. 2d 782, 784 (Fla. 1992).
The trial court was therefore required to conduct a Richardson
inquiry. In making that inquiry, the trial court had to assess
whether Sullivan was prejudiced by the alleged violation. Wilson
v. 	State, 	261 	So. 	3d 	723, 	725–26 	(Fla. 	1st 	DCA 	2018). 	That
assessment required the trial court to consider at least these three
factors: (1) whether the violation was “inadvertent or [willful]”; (2)

“whether the violation was trivial or substantial”; and, “most
importantly,” (3) what effect the violation had on Sullivan’s ability
to “properly prepare for trial.” Richardson, 246 So. 2d at 775.
The 	trial 	court 	properly 	considered 	the 	first 	factor 	and
determined that the State 	did not intentionally withhold the
information. But the court did not consider whether the violation
was trivial or substantial and what effect the violation had on
Sullivan’s ability to prepare for trial. Thus, the court’s Richardson
inquiry was incomplete.
When a trial court fails to conduct an adequate Richardson
inquiry, the appellate court must apply the special harmless error
test set out in State v. Schopp, 653 So. 2d 1016 (Fla. 1995), to
determine whether the discovery violation was harmless. Under
that test, the appellate court can find harmless a trial court’s
failure to conduct an adequate Richardson inquiry “only if [it] can
say 	beyond 	a 	reasonable 	doubt 	that 	the 	defense 	was 	not
procedurally prejudiced by the discovery violation.” 653 So. 2d at
1021. 	“[T]he 	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.” Id. at 1020.
On the record before us, we cannot say beyond a reasonable
doubt that the State’s discovery violation did not procedurally
prejudice Sullivan’s defense. The defense’s trial strategy hinged on
the unexplained nine-month delay between the traffic stop and the
evidence’s submission to FDLE for testing. The defense sought to
raise reasonable doubt as to whether the baggies submitted to
FDLE for testing were the same as those seized from Sullivan
during the traffic stop. There is a reasonable possibility that, had
the 	defense 	known 	of 	the 	substantial 	assistance 	agreement
between Sullivan and the police, it would have chosen a different
trial strategy to avoid the prejudice associated with Sullivan’s
work as a confidential informant. See Young v. State, 369 So. 3d
1243, 1252 (Fla. 6th DCA 2023) (explaining that “[a]n offer to be
an informant implies actual knowledge of drugs or drug dealing”
and that “possessing such knowledge is entirely inconsistent” with
the defense that the drugs were not the defendant’s).

Sullivan was no doubt aware of his statements to police
regarding the substantial assistance agreement and his work as a
confidential informant. Even so, Sullivan’s defense counsel is not
charged with constructive knowledge of Sullivan’s statements to
police. The State failed to disclose those statements to the defense.
And on this record, we cannot say beyond a reasonable doubt that
had the State provided to defense counsel statements by his client
“that directly undermined his trial strategy, he would not have
altered his trial strategy or preparation in a manner that could
have reasonably benefitted” Sullivan. Id.
For these reasons, we cannot conclude that the trial court’s
failure to conduct an adequate Richardson inquiry was harmless
under the Schopp standard. We thus grant Sullivan a new trial,
and we need not decide whether the court abused its discretion in
denying Sullivan’s motion for mistrial. See id. at 1246 (“Because
we grant Young a new trial based on the trial court’s failure to
conduct a Richardson hearing, we need not decide whether the
trial court erred by denying Young’s motion for mistrial.”).
R EVERSED and R EMANDED for a new trial.
LEWIS and NORDBY, JJ., concur.
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Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jessica J. Yeary, Public Defender, and Kasey Lacey, Assistant
Public Defender, Tallahassee, for Appellant.
James 	Uthmeier, 	Attorney 	General, 	and 	Amanda 	Bosman,
Assistant Attorney General, Tallahassee, for Appellee.