Sullivan v. State · No. 1D2025-0433 (Fla. 1st DCA) · Decided October 14, 2026
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The First District Court of Appeal has reversed a drug-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 complete the inquiry the law requires when a discovery violation is alleged. The court said it could not conclude beyond a reasonable doubt that the defense was not procedurally prejudiced.
What Happened
In May 2023, Pensacola Police Department officers stopped Henry Sullivan Jr. after seeing him roll through a stop sign. They searched his pockets and found two baggies containing a white powdery substance and submitted the baggies to their evidence department. Sullivan was not arrested that night. He was arrested in January 2024, and a few weeks later the police sent the baggies to the Florida Department of Law Enforcement (FDLE) for testing. The State charged him with possession of a controlled substance.
In opening statement, the defense emphasized the delay of roughly nine months between the seizure of the baggies and their submission to FDLE, suggesting it created reasonable doubt. Two officers and an FDLE analyst testified for the State, and defense counsel cross-examined all three about their handling of the baggies. Because the cross-examination was designed to call the chain of custody into question, the State asked to proffer testimony from one of the officers to explain the delay. The officer said Sullivan was not immediately arrested because he agreed to act as a confidential informant and provide substantial assistance leading to the arrest of others, but that in the following months he failed to provide any significant leads.
Immediately after the proffer, the defense requested a Richardson inquiry, arguing the State’s failure to disclose the substantial assistance agreement was a discovery violation. The 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, and it allowed the officer’s testimony. The defense called the girlfriend of Sullivan’s son, who testified that the son placed the baggies in Sullivan’s pocket without his knowledge. The defense then moved for a mistrial, which the court denied. The jury found Sullivan guilty, and the court sentenced him to sixty months in prison.
What the Court Held
The First District, in an opinion by Judge Rowe, held that the State’s failure to disclose the 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). There was no dispute about Sullivan’s statements accepting the officers’ proposal to act as an informant, and “[t]hat the prosecutor did not know of the statements until trial is irrelevant,” the court wrote, because prosecutors are charged with constructive knowledge of information known to police officers, citing Gorham v. State, 597 So. 2d 782, 784 (Fla. 1992).
The trial court was therefore required to conduct a Richardson inquiry, assessing at least three factors: (1) whether the violation was inadvertent or willful; (2) whether it was trivial or substantial; and, “most importantly,” (3) what effect it had on the defendant’s ability to properly prepare for trial. The trial court properly considered the first factor and found the State did not intentionally withhold the information. But 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.”
When a trial court fails to conduct an adequate Richardson inquiry, the appellate court applies the special harmless-error test of State v. Schopp, 653 So. 2d 1016 (Fla. 1995), under which the error can be found harmless “only if [it] can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation.” The 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.”
The court could not make that finding. The defense’s trial strategy “hinged on the unexplained nine-month delay” and sought to raise doubt about whether the baggies sent to FDLE were the same as those seized. “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,” the court wrote, citing Young v. State, 369 So. 3d 1243, 1252 (Fla. 6th DCA 2023), for the proposition that “[a]n offer to be an informant implies actual knowledge of drugs or drug dealing.” Although Sullivan was aware of his own statements to police, the court noted that defense counsel is not charged with constructive knowledge of them, and the State failed to disclose them to the defense.
The court reversed and remanded for a new trial. Because it granted a new trial on that basis, it did not decide whether the trial court abused its discretion in denying the motion for mistrial. Judges Lewis and Nordby concurred.
Why It Matters
The opinion reinforces two points of discovery practice: a prosecutor’s lack of personal knowledge does not excuse non-disclosure of a defendant’s own statements known to the police, and when a trial court’s Richardson inquiry skips the second and third factors, an appellate court can find the error harmless only if it can say beyond a reasonable doubt that the defense was not procedurally prejudiced. The opinion is not final until any timely motion for rehearing is resolved.
The Opinion
Download the full opinion (PDF)
| Court | First District Court of Appeal |
| Case No. | 1D2025-0433 |
| Lower Court | Circuit Court, Escambia County (Judge John Miller) |
| Opinion by | Judge Rowe (Judges Lewis and Nordby concurring) |
| Decided | October 14, 2026 |
| Result | Reversed and remanded for a new trial |