Florida Case Law

FARNETH v. STATE, 2D06-2550 (Fla.App. 2 Dist. 12-22-2006)
LEONARD FARNETH, Petitioner, v. STATE OF FLORIDA,
Respondent. No. 2D06-2550. District Court of Appeal of
Florida, Second District. Opinion filed December 22, 2006.

Petition for Writ of Certiorari to the Circuit Court for
the Sixth Judicial Circuit for Pinellas County; sitting in
its appellate capacity.

Donna P. Levine of Law Office of Donna P. Levine, West Palm
Beach, for Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, and
William I. Munsey, Jr., Assistant Attorney General, Tampa,
for Respondent.

NORTHCUTT and LaROSE, JJ., Concur.

STRINGER, Judge.

In this second tier certiorari proceeding, Leonard Farneth
contends that the circuit court, sitting in its appellate
capacity, departed from the essential requirements of the
law when it relied on its own factual findings to reverse
the county court’s ruling which prohibited the State from
using certain evidence as a discovery sanction. We agree
and therefore grant Farneth’s petition.

In October 2003, Farneth was the subject of a traffic stop
after he was seen driving at a high rate of speed and
weaving in and out of his lane of travel. During the stop,
the officer noted that Farneth had glassy bloodshot eyes,
slurred speech, and an odor of alcohol about him. Farneth
also performed poorly on field sobriety tests. Farneth was
arrested and escorted to the county detention center, where
he took a breath test using an Intoxilyzer 5000 machine.
The results of this test allegedly showed that Farneth was
in violation of section 316.193(1)(c), Florida Statutes
(2003), and Farneth was charged with driving under the
influence and speeding.

Farneth subsequently moved to suppress the breath test
results on the grounds that the machine used during the
test had not been maintained in compliance with the
specifications in the manufacturer’s operating manual.
Farneth also argued that the State had refused to furnish
him with the manufacturer’s operating manuals in violation
of various administrative code rules. The court denied
Farneth’s motion to suppress but also ordered the State to
provide Farneth with the requested manufacturer’s operating
manuals.

Shortly thereafter, the State filed an “Acknowledgement of
Additional Tangible Evidence,” which listed five different
manuals relating to the Intoxilyzer 5000. The State then
filed a motion for clarification of the court’s earlier
order and requested guidance from the court as to how the
manuals were to be produced to Farneth. In response to the
State’s motion, the court entered an order stating, in
pertinent part,

The State shall supply the Defendant with copies of the
operation manuals, owner’s manuals and schematics, which
were supplied by the manufacturer of the particular
instrument used in this case; or the State shall certify
that the materials supplied are identical to the original
documents supplied with the breathalyzer instrument used
in this case.

Thereafter, the State produced to Farneth a 1984 Intoxilyzer
5000 Operator’s Manual, a 1989 Intoxilyzer 5000 Operator’s
Manual, a 1991 Understanding the Intoxilyzer 5000 Manual, a
1992 Basic Maintenance & Repair Manual, a 1999 Intoxilyzer
5000 Service Manual, and miscellaneous schematics and
diagrams.

On the morning of trial, Farneth made an oral motion in
limine to prevent the State from mentioning the breath test
results until the State could establish that it had
complied with the court’s discovery order concerning the
production of the Intoxilyzer manuals. Farneth argued that
the discovery order required the State to produce the
manuals applicable to the Intoxilyzer actually used by
Farneth and that instead the State had produced manuals
that were applicable to several different models. Farneth
noted that he had not raised the issue earlier because he
had assumed that the State’s maintenance officer, who had
been identified by the State only the Friday before trial,
would testify as to which of the five manuals produced by
the State applied to the Intoxilyzer actually used by
Farneth. However, Farneth asserted that he had spoken with
the maintenance officer for the first time that morning and
the maintenance officer could not tell him which manuals
applied to the Intoxilyzer at issue. Therefore, according
to Farneth, the State had not complied with the discovery
order because it had not produced the manuals for the
Intoxilyzer actually used by Farneth and because it could
not “certify that the materials supplied are identical to
the original documents supplied with the breathalyzer
instrument used in this case.”

In response, the State argued that it had supplied all of
the manuals that it had. The court asked the State how
Farneth was supposed to know which of the manuals that were
produced to him were for the machine Farneth actually used.
The State responded that it believed that if Farneth wanted
to know more, “he might need to do some research at FDLE.”
The State also argued that determining which manuals were
applicable to the specific machine used by Farneth was
irrelevant because “[t]he maintenance person doesn’t use
any manual, they use FDLE rules.”

After extensive argument on the issue, the court held that
the State had failed to comply with the plain language of
the discovery order concerning production of the
Intoxilyzer manuals. The State requested a continuance to
obtain the information necessary to comply with the order,
but the court denied the motion, noting that the State had
had several months in which to comply. The court then
entered an order prohibiting the State from using the
breath test results as a sanction for its discovery
violation.

The State appealed the county court’s ruling to the circuit
court. The circuit court issued a lengthy opinion in which
it held that, regardless of the merits of either party’s
position as to the State’s compliance with the discovery
order, the county court had erred by failing to hold a
Richardson[fn1] hearing and by failing to consider less
drastic sanctions than exclusion of the evidence. However,
rather than remanding the case to the county court for a
proper Richardson hearing, the circuit court proceeded to
make various factual findings based on the appellate
record, and it reversed the county court’s order based on
those findings. Farneth then sought certiorari review in
this court.

In a second tier certiorari proceeding, this court does not
conduct a plenary review of the entire case. Rather, this
court is limited to reviewing “whether the circuit court
afforded procedural due process and whether the circuit
court applied the correct law.” Haines City Cmty. Dev. v.
Heggs, 658 So. 2d 523, 530 (Fla. 1995). In essence, second
tier certiorari functions as a check to ensure that the
initial appeal in the circuit court was fundamentally fair,
both procedurally and legally. Here, the circuit court
applied the correct law when it determined that the county
court had failed to conduct a proper Richardson hearing to
address the State’s alleged discovery violation. However,
the circuit court denied Farneth procedural due process
when it undertook to make its own factual findings and
render its opinion based on those findings.

A fundamental principle of appellate procedure is that an
appellate court is not empowered to make findings of fact.

It is the function of the trial court to evaluate and
weigh the testimony and other evidence in order to arrive
at findings of fact to which the rules of law are then
applied. The appellate court has no opportunity to observe
the witnesses and thereby to judge their credibility. For
this and other good reasons certain rules of review have
been formulated that define and limit the appellate
function. . . . “[I]t is not the prerogative of an
appellate court, upon a de novo consideration of the
record, to substitute its judgment for that of the trial
court.”

Oceanic Int’l Corp. v. Lantana Boatyard, 402 So. 2d 507, 511
(Fla. 4th DCA 1981) (quoting Shaw v. Shaw, 334 So. 2d 13,
16 (Fla. 1976)). Moreover, in the context of a Richardson
hearing:

[T]he trial judge must make full inquiry into the
circumstances surrounding a violation of the Florida Rules
of Criminal Procedure to determine whether the defendant
was prejudiced thereby. An appellate court’s examination
of the record is not a substitute for “a trial judge’s
determined inquiry into all aspects of the state’s breach
of the rules.”

Cooper v. State, 377 So. 2d 1153, 1155 (Fla. 1979) (quoting
Cumbie v. State, 345 So. 2d 1061, 1062 (Fla. 1977)).

Because an appellate court is not entitled to make its own
factual findings from the bare record, the proper remedy
when the trial court has applied the incorrect law is for
the appellate court to remand to the trial court for it to
reconsider its ruling in light of the correct law, taking
additional evidence if necessary. See State v. Brown, 782
So. 2d 526, 528 (Fla. 1st DCA 2001) (remanding for further
proceedings when the trial court failed to make the
requisite findings after a Richardson hearing); State v.
Snell, 391 So. 2d 299, 302 (Fla. 5th DCA 1980) (remanding
for further proceedings when the trial court had not
afforded the State a sufficient opportunity during the
Richardson hearing to show that the alleged discovery
violation was not prejudicial to the defendant); see also
Marshall v. State, 593 So. 2d 1161, 1163 (Fla. 2d DCA 1992)
(remanding to the trial court for an evidentiary hearing
after the trial court applied the incorrect law when
considering a Neil[fn2] challenge); Abrams v. Paul, 453 So.
2d 826 (Fla. 1st DCA 1984) (remanding to trial court for
evidentiary hearing when the trial court applied the
incorrect law when considering the defenses raised).

In this case, once the circuit court determined that the
county court had failed to hold a proper Richardson
hearing, the remedy was for the circuit court to remand the
case to the county court for reconsideration of its ruling
after it held a proper Richardson hearing. The circuit
court failed to afford Farneth procedural due process, and
thus departed from the essential requirements of the law,
when it usurped the county court’s fact-finding role by
making its own findings of fact and reversing the county
court’s order based on those findings. Accordingly, we
grant Farneth’s petition and remand with directions to the
county court to reconsider its ruling on the State’s
discovery violation in light of the correct law, taking
additional evidence on the issue if needed.

Petition granted.

[fn1] Richardson v. State, 246 So. 2d 771 (Fla. 1971).

[fn2] State v. Neil, 457 So. 2d 481 (Fla. 1984).