
    James Edward McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 92-3175.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 1994.
    
      James B. Gibson, Public Defender, and M.A. Lucas, Asst. Public Defender, Daytona Beach, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, Myra J. Fried, Asst. Atty. Gen., Day-tona Beach, for appellee.
   W. SHARP, Judge.

McCray appeals his convictions for burglary, criminal mischief, and trespass to a structure which emanated from his conduct during domestic disputes with his former girlfriend, Carol Kuklis. He claims reversible error occurred, inter alia, because the lower court failed to conduct a Richardson hearing, and because it denied his motion to dismiss based on a double jeopardy violation. We reverse.

McCray and Kuklis were involved in an on-again-off-again romantic relationship, during which (at least part of the time) McCray resided with Kuklis in her apartment. In April 1992, McCray became angry at Kuklis, and in a rage, damaged property in her apartment. McCray was prosecuted for this offense and spent a short period of time in jail. Kuklis also sought and obtained a protective order which forbade McCray to be on the premises where Kuklis worked or resided.

Nevertheless, after McCray was released from jail, the two reconciled and continued their former relationship. But, in May of 1992, a similar incident occurred, and McCray was prosecuted for violating the protective order. He again spent a short time in jail. Upon being released, McCray continued to contact Kuklis and she let him into her apartment on several occasions. In July of 1992, a third incident occurred.

The offenses which are the subject of this appeal involve the May and July offenses, which were tried at the same time. During the trial, the judge permitted Kuklis to testify that after being released from jail in June for violation of the protective order, McCray telephoned her and said he was sorry for damaging her property. The state had not disclosed this statement to the defense, and defense counsel requested a Richardson hearing. The judge was bothered because neither side appeared to have known of this statement before trial. However, no one conceded that fact at trial. The court said: “It would seem apparent the state did not intend to use the evidence and they are just unaware.” Defense counsel responded: “The fact is it’s not apparent....”

The dissent assumes a fact not evidenced by the transcript: that the state did not have knowledge of this information. It also argues the defense did not dispute the state’s knowledge. The state never contended it did not know of this information beforehand. The judge merely assumed the state was unaware of the information on his own. While it is true that defense counsel never specifically argued the state had knowledge, it never conceded it either. Nor could it, as defense simply had no information in this regard. It heard the information for the first time at the trial which is why the Richardson issue was raised.

Q. Did he ever say anything to you with regard to the May 28th incident?
A. At that particular time, no.
Q. Did he ever after that say anything to you in regard to that incident?
A. Yes.
Q. What did he say?
A. That he was sorry he did it.

The dissent concedes that if the issue were whether the state had knowledge a reversal would be required. But in part, that is precisely the issue. It has long been the rule that there must be evidence in the record to support a fact finding or it will be reversed on appeal. Marsh v. Marsh, 419 So.2d 629 (Fla.1982). In this case the judge found, without any evidence at all, that the state had no knowledge. Further, the record is equally susceptible of a conclusion that the state did have knowledge, as evidenced by the exchange quoted above between Garrett, the prosecutrix, and Kuklis.

The state also argues on appeal that the judge believed a Richardson hearing was not necessary because the victim was testifying and not a police officer. The view that only incriminating statements given to police must be disclosed to the defense during discovery has previously been rejected. Clair v. State, 406 So.2d 109, 111 (Fla. 5th DCA 1981); McClellan v. State, 359 So.2d 869 (Fla. 1st DCA), cert. denied, 364 So.2d 892 (Fla.1978); Bell v. State, 327 So.2d 869 (Fla. 1st DCA 1976).

Richardson mandates that the court inquire whether a discovery violation was willful or substantial, and whether the violation prejudiced the defendant in his ability to prepare for trial. Failure to conduct a Richardson hearing is per se reversible error. See Smith v. State, 500 So.2d 125 (Fla.1986). The discovery violation and an objection require the judge to conduct the hearing. Smith, 500 So.2d at 126. See Bush v. State, 461 So.2d 936 (Fla.1984), cert. denied, 475 U.S. 1031, 106 S.Ct. 1237, 89 L.Ed.2d 345 (1986). Prosecutorial statements regarding lack of knowledge or intent to disclose are not relevant in determining whether a Richardson hearing is required. See Hickey v. State, 484 So.2d 1271 (Fla. 5th DCA), rev. denied, 492 So.2d 1335 (Fla.1986) (discovery violations not limited to statements state intends to use at trial); Hutchinson v. State, 397 So.2d 1001, 1002 (Fla. 1st DCA 1981); Taylor v. State, 292 So.2d 375 (Fla. 1st DCA), cert. denied, 298 So.2d 415 (Fla.1974) (statements in constructive possession of prosecutor even if he is not personally aware of them).

We think an admission of guilt by an accused, undisclosed to the defense, is a substantial and prejudicial matter which triggers the need for an inquiry under Richardson. The failure to conduct such a hearing in this case requires reversal.

In addition, McCray claims that the trial court erred in denying his motion to dismiss charges stemming from the May 1992 incident. He claims that his double jeopardy rights were violated because he was prosecuted for the May 1992 offense twice: first, in the contempt proceeding; and second, for the underlying offense for which he had been previously held in contempt. The United States Supreme Court has held that a later criminal prosecution for the same conduct which gave rise to a criminal contempt prosecution can violate a defendant’s double jeopardy rights. See United States v. Dixon, — U.S.-, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). In reaching this conclusion, the Court held that contempt is a crime in the ordinary sense of the word.

Criminal contempt proceedings must now be considered as raising valid double jeopardy problems. However, the record in this case is insufficient for us to make a determination on this issue. We do not have before us the order below which found McCray guilty of criminal contempt, or findings as to which acts he committed violated the court’s earlier protection order. Thus it is impossible for us to make a proper Blockburger comparison of the criminal contempt offense with the May 22 offenses. On remand the trial judge may revisit this issue.

We therefore reverse and remand both eases (92-9427 and 92-12693) for further proceedings and, if appropriate, a new trial. See Richardson.

REVERSED AND REMANDED.

THOMPSON, J., concurs.

GRIFFIN, J., dissents with opinion.

GRIFFIN, Judge,

dissenting.

I respectfully dissent.

The Richardson issue on which the majority reverses the conviction concerns an incul-patory statement made to the victim by the defendant that was previously undisclosed to the defense. This ground should fail on appeal because the defendant failed to raise a proper ground below. If the defendant is to have the benefit of the drastic remedy of per se error provided for the failure to conduct a Richardson hearing, the defendant should have the burden to state a proper legal basis for entitlement to a Richardson hearing so that the trial court can intelligently and properly evaluate the issue and make an advised decision before it is too late.

The sine qua non for entitlement to a Richardson hearing is a claim that there has been a discovery violation. Once a colorable claim has been made, a Richardson hearing explores the circumstances of the violation and its possible prejudice to the defendant. Smith v. State, 500 So.2d 125, 126 (Fla.1986). In this ease, when a Richardson hearing was demanded, the lower court expressed doubt that Richardson applied to a situation where the state’s witness had not disclosed the information to the prosecutor:

I am not sure of the applicability of a Richardson hearing in evidence that comes up in [sic] the first time during the course of the trial that neither side is aware of.

Defense counsel’s response was to argue (erroneously, in my view) the following:

She’s the state’s witness. That may be the same if — Judge, it’s applicable. It’s the same thing and this can happen that the state attorney’s office may not be aware of it but it’s the duty of the state’s witness to inform the state attorney. The same would be if the police officers hadn’t put anything in his report and all of a sudden gets on the stand and says the defendant in an utterance and gets past Miranda.

There is no support in Florida law that I can find for the position argued by defense counsel to the trial judge that the state commits a discovery violation when it fails to disclose to defense counsel information that a witness has not disclosed to any agent of the state. Defendant has cited none on appeal. If the issue presented were whether the state was, in fact, aware of the information, I would agree reversal would be required. Assertion of failure to disclose information known to an agent of the state would satisfy the predicate requirement to conduct a Richardson hearing to ascertain the circumstances of the violation and the prejudice to defendant. But that issue was never contested below. Defense counsel never challenged the court’s premise that the state was unaware of the information prior to trial nor did he ask for a hearing to determine that fact. He merely asserted that the failure of a state witness to make disclosure was a discovery violation by the state. The lower court correctly rejected the only discovery violation claim asserted by defense counsel.

As Judge Sharp has noted, it would be impossible to find a double jeopardy violation on this record under the rule set out in United States v. Dixon, — U.S. -, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Contrary to defendant’s apparent position, it is not self-evident that prosecuting the defendant for criminal contempt based on his violation of a civil injunction for protection from domestic violence would bar the subsequent prosecution in this case for burglary and criminal mischief. The defendant established below what the domestic violence injunction prohibited, but not how the contempt was charged, what was proved or how it was adjudicated. I would affirm the conviction. 
      
      . § 810.02(1), (3), Fla.Stat. (1991).
     
      
      . § 806.13(1)(a) and (b)2, Fla.Stat. (1991).
     
      
      . § 810.08, Fla.Stat. (1991).
     
      
      . Richardson v. State, 246 So.2d 771 (Fla.1971).
     
      
      . In Smith v. State, 500 So.2d 125 (Fla.1986), in response to the certified question,
      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?
      the supreme court responded:
      
        We have addressed this issue repeatedly and consistently, [citations omitted] Both legal and practical considerations dictate, once again, an affirmative answer to the question posed, (emphasis supplied).
     
      
      . See case number 92-01178.
     
      
      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
     
      
      . It is clear from the record that the defendant is guilty beyond any reasonable doubt and that in the context of any analysis other than "per se" error, admission of this testimony would be harmless. There was an independent eyewitness to defendant's breaking into the apartment and the destruction of property; the defendant admitted his conduct to the investigating officer and, at trial, he admitted the damage. See Schopp v. State, 19 Fla.L.Weekly D1445, - So.2d - (Fla. 4th DCA July 6, 1994).
     