The First District Court of Appeal has reversed a possession conviction and ordered a new trial because the State did not disclose until mid-trial that the defendant had agreed to act as a confidential informant, and the trial court did not finish the inquiry the law requires.
After a 2023 traffic stop in Escambia County, police seized two baggies from Henry Sullivan Jr. but did not arrest him until January 2024, and sent the baggies to FDLE a few weeks later. The defense built its strategy on that delay and the chain of custody. To rebut it, the State proffered an officer’s testimony that Sullivan was not arrested earlier because he had agreed to be an informant but produced no significant leads. The defense asked for a Richardson inquiry. The trial court found no violation and no prejudice, and the jury convicted. Sullivan was sentenced to sixty months.
The First District, in an opinion by Judge Rowe, held that the late disclosure was a discovery violation. “That the prosecutor did not know of the statements until trial is irrelevant,” because prosecutors are charged with the police’s knowledge. The trial court considered only whether the violation was willful. It “did not consider whether the violation was trivial or substantial and what effect the violation had on Sullivan’s ability to prepare for trial,” so its inquiry “was incomplete.”
Under the Schopp test, an appellate court can find the error harmless “only if [it] can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation.” The court could not, because the defense strategy “hinged on the unexplained nine-month delay” and there was “a reasonable possibility” the defense would have chosen a different strategy had it known of the informant agreement. The court did not decide whether denying the mistrial motion was error.
Download the full opinion (PDF)
Citation: Sullivan v. State, No. 1D2025-0433 (Fla. 1st DCA Oct. 14, 2026) (Rowe, J.; Lewis and Nordby, JJ., concurring).
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