
    Julio R. GUILLEN, Appellant, v. STATE of Florida, Appellee.
    No. 89-02507.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1991.
    Barbara M. Linthicum, Public Defender, and Lawrence M. Korn, Asst. Public Defender, Tallahassee, for appellant.
    Robert A. Butterworth, Atty. Gen., and Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a judgment and sentence for sale of cocaine while armed and possession of cocaine while armed. Appellant argues, inter alia, that the trial court committed per se reversible error in failing to conduct a hearing pursuant to Florida Rule of Criminal Procedure 3.220 and Richardson v. State, 246 So.2d 771 (Fla.1971), as to the State’s failure to disclose a report from an expert in the Florida Department of Law Enforcement revealing that the firearm used in the commission of the charged offenses was inoperable.

On April 15, 1989, Detectives Johnson and Webster drove in an unmarked vehicle to the Havana Club in Jacksonville to make undercover purchases of cocaine and arrests. After they stopped in front of the club, a black male approached Webster on the driver’s side and began negotiating a sale of cocaine. As Webster made a purchase, appellant approached Johnson, who was seated on the passenger side, and asked whether he wanted to purchase cocaine. Before this transaction could be completed, other officers arrived in backup vehicles to arrest both men. As the officers apprehended appellant, appellant flicked to the ground a matchbox he had in his hand and reached into the waistband of his pants and pulled out a pistol. Appellant momentarily pointed the pistol at an officer and then dropped it. The matchbox was later determined to contain cocaine.

By a five-count information filed April 27, 1989, appellant was charged with sale of cocaine while armed with a firearm, possession of cocaine while armed with a firearm, use of a firearm during commission of a felony, carrying a concealed firearm, and possession of a firearm by a convicted felon. Appellant filed a demand for discovery seeking “reports or statements of experts made in connection with the particular case” and “any material information within the State’s possession or control which tends to negate the guilt of the accused as to the offense charged.” The State, in its response, gave notice of its intention to use deposition testimony but otherwise indicated “none known to the State at this time.” Prior to trial, appellant’s counsel, in the presence of the prosecutor, inspected the pistol and saw that the pistol’s firing mechanism, including its firing pin, was missing.

The day before trial, a Florida Department of Law Enforcement (FDLE) analyst completed a report stating that the pistol was inoperable because it was missing its firing mechanism. The FDLE analyst informed the prosecutor that the pistol was nonfunctional; however, the prosecutor did not receive a copy of the report until sometime after the commencement of trial.

The case proceeded to trial on August 3, 1989. During closing argument, appellant’s counsel argued that the pistol’s firing mechanism was missing and that, accordingly, the State had offered insufficient proof that the pistol met the statutory definition of firearm. The jury found appellant guilty of sale of cocaine while armed and possession of cocaine while armed, but acquitted him as to the remaining counts.

After the verdict but before sentencing, the prosecutor furnished appellant’s counsel with a copy of the report. Appellant, by motion, sought a Richardson hearing and a new trial, arguing that the State’s failure to disclose the report had prejudiced him in the preparation of his defense, in that had he known of the report, he could have made an effort to determine whether the FDLE expert believed the pistol to be a firearm and could have argued to the jury more effectively that the pistol was not a firearm or weapon. Appellant did not contend that the State’s failure to disclose the report was intentional.

The failure to hold a Richardson hearing is per se reversible error where a discovery violation has occurred. Brown v. State, 515 So.2d 211, 213 (Fla.1987); Smith v. State, 500 So.2d 125, 126 (Fla.1986). Assuming that there was a “discovery violation” here, the trial court’s inquiry was sufficient under Richardson. Richardson requires that the trial court inquire into whether the State’s discovery violation was inadvertent or willful, whether the violation was trivial or substantial, and, most importantly, whether the violation affected the defendant's ability to prepare for trial. State v. Hall, 509 So.2d 1093, 1096 (Fla.1987); Cumbie v. State, 345 So.2d 1061, 1062 (Fla.1977); Richardson, supra at 775. The trial court’s inquiry into and resolution of these issues is supported by the record. There was no contention that nondisclosure was willful, and the discovery violation, if any, was insubstantial in view of appellant’s counsel’s knowledge that the pistol was inoperable, lack of prejudice in preparation of the defense, and the fact that the jury acquitted appellant of every offense involving the use or possession of a firearm.

Appellant’s remaining points concerning the constitutionality and applicability of the habitual felony offender statute also lack merit.

The judgment and sentence are AFFIRMED.

SMITH, J., concurs.

ZEHMER, J., specially concurs with opinion.

ZEHMER, Judge

(specially concurring).

I concur in affirming the appealed judgment and sentence. I conclude, however, that the state’s failure to supply the defendant with a copy of the FDLE report on the pistol was clear error, but agree for the following reasons that the error is harmless in view of the jury’s acquittal of the defendant on the charges of being armed with a firearm.

The two charges of which the defendant was found guilty alleged that during the commission of the described offenses the defendant “carried, displayed, used, threatened or attempted to use a weapon or firearm, to-wit: a pistol ...,” contrary to section 775.087, Florida Statutes. The FDLE report contained evidence favorable to the defendant regarding whether the pistol met the statutory definition of a firearm and was clearly required to be disclosed pursuant to the criminal discovery rules and the Due Process Clause as construed in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). I do not consider the trial court’s inquiry into this matter when it became known to defense counsel adequate to dissipate the state’s error in this regard. Nevertheless, the trial court submitted the case to the jury with instructions and a verdict form allowing it to find that the “pistol” was either a “firearm” as defined in section 790.001(6) or a “weapon” as defined in the Florida Standard Jury Instructions in Criminal Cases in section 775.087. The defendant’s objection to the instruction using this definition of weapon was overruled and his request for an instruction on the statutory definition of weapon set forth in section 790.001(13) was denied by the trial court; however, the validity of this instruction and objection has not been argued on this appeal. Nor is any argument made on appeal asserting a lack of evidence to prove that the defendant “carried, displayed, used, threatened or attempted to use” the alleged pistol shown to be inoperable as a weapon, as alleged in the motion for a new trial. Accordingly, on the arguments made here, we must conclude that the jury permissibly found the defendant guilty of being armed with a weapon, i.e., an inoperable pistol, while exonerating him of being armed with a firearm, i.e., an operable pistol, thereby rendering the state’s failure to produce the FDLE report harmless. 
      
      . Specifically, the FDLE report states the pistol was missing its striker (firing pin), striker spring, take-down plunger/lock, sear, sear spring, and sear connector.
     
      
      . Appellant was acquitted of sale of cocaine while armed with a firearm and possession of cocaine while armed with a firearm.
     