CopyCited 191 times | Published | Supreme Court of Florida | 1992 WL 56521
...Pardo,
582 So.2d 1225 (Fla.3d DCA 1991), in which the district court certified express and direct conflict with Kopko v. State,
577 So.2d 956 (Fla. 5th DCA 1991), and certified the following question of great public importance: [1] Where a child victim's hearsay statements satisfy subsection
90.803(23), Florida Statutes (1989), and the child is able to testify fully at trial, must the hearsay statements be excluded solely because they are prior consistent statement by the child, or is the test for exclusion that found in section
90.403, Florida Statutes (1989)?
582 So.2d at 1228....
...sion in State v. Hayes,
333 So.2d 51 (Fla. 4th DCA 1976), and our decision in Weiman v. McHaffie,
470 So.2d 682 (Fla. 1985). James Antonio Pardo is charged with seven counts of capital sexual battery on a child seven years of age. [2] Pursuant to subsection
90.803(23), Florida Statutes (1989), the State filed notices of intent to rely on hearsay statements made by the child victim to nine separate individuals....
...concerning all the elements of the alleged crimes. The court concluded that it was required to exclude the hearsay statements under the authority of Kopko v. State,
577 So.2d 956, 962 (Fla. 5th DCA 1991), which held that, even though the criteria of section
90.803(23) are satisfied, where the child is able to testify fully regarding the circumstances of the alleged abuse, hearsay statements regarding the abuse are inadmissible prior consistent statements....
...4th DCA 1976) (footnote and citations omitted). [5] Consequently, the trial court in this case was bound by the Fifth District's decision in Kopko. On the merits, we find that a child victim's hearsay statement which qualifies for the statutory exception in section 90.803(23) may be admissible in evidence when the child is able to testify fully at trial notwithstanding its characterization as a prior consistent statement. Section 90.803(23) provides in relevant part: (a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical...
...ime, content, and circumstances of the statement provide sufficient safeguards of reliability... . and 2. The child either: a. Testifies; or b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. § 90.803(23)(a), Fla....
...1951); Wise v. State,
546 So.2d 1068, 1069 (Fla. 2d DCA), review denied,
554 So.2d 1169 (Fla. 1989); 98 C.J.S. Witnesses § 472, at 349-350 (1957). Although Pardo's argument has merit, his position runs counter to the plain language of the statute. Section
90.803(23) clearly envisions the admission of a child victim's hearsay statement despite its characterization as a prior consistent statement....
...and unambiguous there is no occasion for judicial interpretation. E.g., Holly v. Auld,
450 So.2d 217, 219 (Fla. 1984); Van Pelt v. Hilliard,
75 Fla. 792, 798-99,
78 So. 693, 694-95 (1918). We therefore agree with the court below that the language of section
90.803(23) is unambiguous and plainly provides that, if reliable, a child victim's hearsay statement is not excludable per se as hearsay, or as a prior consistent statement, even though the child testifies fully at trial....
CopyCited 163 times | Published | Court of Appeals for the Eleventh Circuit | 97 Fed. R. Serv. 3d 419, 2017 WL 816224, 2017 U.S. App. LEXIS 3756
entire case from federal court. See Fla. Stat. §
90.803(22) (providing an exception to hearsay for former
CopyCited 84 times | Published | Supreme Court of Florida | 57 U.S.L.W. 2391
...Butterworth, Atty. Gen., and Katherine V. Blanco and Kim W. Munch, Asst. Attys. Gen., Tampa, for respondent. EHRLICH, Chief Justice. We have for review Glendening v. State,
503 So.2d 335 (Fla.2d DCA 1987), in which the district court expressly declared valid section
90.803(23), Florida Statutes (1985)....
...twenty-five years of incarceration. On appeal, the Second District Court of Appeal affirmed Glendening's conviction and sentence, rejecting the arguments that the trial court erred in admitting out-of-court statements made by the young victim under section 90.803(23), Florida Statutes (1985). Glendening now seeks review of the decision of the Second District Court of Appeal. As the district court below noted, the major thrust of Glendening's argument involves the constitutionality of section 90.803(23), its applicability to his case, and compliance with the section's requirements. Section 90.803(23) is a hearsay exception which permits, under certain circumstances, the introduction of out-of-court statements made by a child victim of sexual abuse describing any act of child abuse, sexual abuse, or any other offense involving a...
...ul sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, if the child has a physical, mental, emotional, or developmental age of eleven or less. We first reject Glendening's contention that section 90.803(23) is unconstitutional on its face....
...We rejected these arguments in our decision in Perez v. State,
536 So.2d 206 (Fla. 1988), released simultaneously with the present decision. We next address Glendening's argument that because he was charged with an offense occurring before the effective date of section
90.803(23), application of the new hearsay exception to his case violated the prohibition against ex post facto laws....
...tantial personal rights." Miller,
107 S.Ct. at 2451; Dobbert,
432 U.S. at 293,
97 S.Ct. at 2298. Relying primarily upon that portion of the formulation of the scope of ex post facto laws from Miller which is set forth above, Glendening contends that section
90.803(23) alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense. He further contends that because he was disadvantaged by the retrospective application of the exception, admission of the out-of-court statements of the child victim pursuant to section
90.803(23) in his case violated the prohibition against ex post facto laws....
...lause and held that the change was procedural. See Dobbert,
432 U.S. at 293,
97 S.Ct. at 2298. The same reasoning which resulted in the Supreme Court's determination that the statutes in Hopt and Thompson were procedural leads to the conclusion that section
90.803(23), Florida Statutes, is also procedural and that the statute does not affect "substantial personal rights." As in Hopt, "[t]he crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by" the enactment of section
90.803(23).
110 U.S. at 589-90,
4 S.Ct. at 209-10. As in Thompson, section
90.803(23) "left unimpaired the right of the jury to determine the sufficiency or effect of the evidence declared to be admissible, and did not disturb the fundamental rule that the state ... must overcome the presumption of his innocence, and establish his guilt beyond a reasonable doubt."
171 U.S. at 387,
18 S.Ct. at 924. Accordingly, we conclude that the district court below correctly held that application of section
90.803(23) in the present case does not violate the prohibition against ex post facto laws. The third issue addressed concerns compliance with the requirements of section
90.803(23) in the trial court below....
...Glendening made a pretrial motion to exclude all hearsay statements made by the child. In response, the state filed a notice of the various hearsay statements it intended to introduce. The trial court ruled that the state's response did not constitute adequate compliance with the notice requirements of section 90.803(23)(b) and permitted the state to file a more detailed response....
...ircumstances under which the statements were made. The videotape of the child's testimony was shown to the jury once during the state's case-in-chief and then again by the defense. Glendening raises several arguments in regard to the compliance with section 90.803(23) by the trial court. Glendening contends that the requirements of section 90.803(23)(a)(2) were not met....
...he state refer to "testimony" or "testifying." Application of section
92.53 to permit videotaping the child's testimony instead of requiring the child to testify in open court for purposes of admitting the child's out-of-court statements pursuant to section
90.803(23) does not violate the federal or Florida constitutional guarantee of the right of confrontation....
...le doubt. State v. DiGuilio,
491 So.2d 1129, 1138 (Fla. 1986). *219 Accordingly, we conclude the district court below correctly held that introduction of the child's videotaped testimony, taken pursuant to section
92.53, satisfied the requirement of section
90.803(23)(a)(2) that the child either testify or be unavailable....
...view of the present case. The Roberts unavailable declarant scenario requires that if the declarant is unavailable, the hearsay must be marked with particularized guarantees of trustworthiness in order to be admissible. Id. at 65,
100 S.Ct. at 2538. Section
90.803(23) incorporates this requirement by requiring that there be other corroborative evidence of the abuse or offense if the child declarant is unavailable....
...In order for an argument to be cognizable on appeal, it must be the specific contention asserted as the legal ground for the objection below. Steinhorst. Accordingly, this issue is also not properly preserved for appeal. In summary, we conclude the district court below correctly held that section 90.803(23) is constitutional and was properly applied in the present case....
...[6] Furthermore, Glendening's argument that the child must be testimonially competent in order for the child's out-of-court statements to be admitted has been rejected by this Court in Perez v. State,
536 So.2d 206 (Fla. 1988). In Perez, we held that the requirement of section
90.803(23) "that the trial court find that the time, content, and circumstances of the statement provide sufficient safeguards of reliability furnishes a sufficient guarantee of trustworthiness of the hearsay statement" to satisfy the requirements of Ohio v....
CopyCited 82 times | Published | Supreme Court of Florida | 1994 WL 137938
...This issue involves a relatively new area of the law in which the legislature and the courts are attempting to provide a means for admitting a child's hearsay testimony at trial, particularly in child abuse cases. Before the enactment of the child hearsay exception at issue in this case, section 90.803(23), Florida Statutes (1987), the hearsay testimony of a child was generally excluded in criminal trials....
...ified the following question as one of great public importance: DOES A FINDING OF INCOMPETENCY TO TESTIFY BECAUSE ONE IS UNABLE TO RECOGNIZE THE DUTY AND OBLIGATION TO TELL THE TRUTH SATISFY THE LEGISLATIVE "TESTIFY OR BE UNAVAILABLE" REQUIREMENT OF SECTION 90.803(23)(a)(2)? Id....
...We have jurisdiction pursuant to article V, section 3(b)(4), of the Florida Constitution. For the reasons expressed, we answer the question in the affirmative. Accordingly, we disagree with the district court's holding in Townsend II that the child was not "unavailable" for purposes of section 90.803(23)(a)(2), Florida Statutes (1987), the child hearsay exception....
...y under section
90.603, Florida Statutes (1987), due to her age. [1] After the State subsequently filed a notice of intent to introduce the child's statements as hearsay evidence, the trial judge determined that the child was not "unavailable" under section
90.803(23)(a)(2) because the child's incompetency met none of the definitions of unavailability contained in section
90.804, Florida Statutes (1987) (incorporated by reference into section
90.803(23))....
...section
90.804(1) because of the child's age and lack of understanding as to the duty or obligation to tell the truth. State v. Townsend,
556 So.2d 817 (Fla. 5th DCA 1990) ( Townsend I ). After remand, the trial judge conducted a hearing pursuant to section
90.803(23) to determine whether the child's hearsay statements were sufficiently reliable to allow the admission of those statements at trial....
...The district court issued a divided en banc decision in which the majority receded from Townsend I, holding that its reliance on Perez in Townsend I was misplaced and that incompetency under section
90.603 does not render a witness unavailable for purposes of section
90.803(23)....
...In rendering its decision, the district court certified the aforementioned question to this Court, seeking to determine whether the two-year-old child in this case was "unavailable," as that term is defined in section
90.804, for purposes of admitting the child's hearsay statements under section
90.803(23). Child Hearsay Allowable Under a Special Hearsay Exception Section
90.803(23), the child-sexual-abuse-hearsay exception, was enacted to enable trustworthy and reliable statements not covered under any other hearsay exception to be admitted in court....
...d not be allowed absent clear indications of reliability. As discussed later in this opinion, the reliability requirements of this statute are essential in assuring the constitutionality of this exception. The Unavailability Requirements of Sections
90.803(23) and
90.804(1) In addition to these strict reliability requirements, the hearsay statement of a child victim is considered admissible under section
90.803(23) only if the child testifies or is judicially found to be unavailable as a witness....
..."unavailable" under section
90.804(1)(d) due to incompetency. In Townsend II, however, the district court reversed itself, finding that incompetency was not the equivalent of unavailability for purposes of admitting the child's statements under *955 section
90.803(23), and, as such, that the child's statements should not have been admitted at trial....
...section
90.804(1)(d)'s existing mental infirmity requirement. We conclude that a finding of incompetency to testify because one is unable to recognize the duty and obligation to tell the truth satisfies the "testify or be unavailable" requirement of section
90.803(23)....
...his right to confrontation under the Sixth Amendment to the United States Constitution and article I, section 16, of the Florida Constitution. Essentially two issues arise in this case under the confrontation clause: (1) whether the requirements of section 90.803(23) are sufficient to comply with the confrontation clause requirements of the federal and Florida constitutions; and (2) whether the trial court properly adhered to those requirements in ruling on the admissibility of the child's hearsay statements. The first issue was addressed by this Court in Perez, and we reaffirm that decision here. In Perez, we specifically held that section 90.803(23) complied with the requirements of the confrontation clauses of both the federal and Florida constitutions....
...within a firmly rooted hearsay exception, the hearsay must be marked with particularized guarantees of trustworthiness in order to be admissible. In applying that holding in the Perez case, we determined that the specific reliability requirements in section
90.803(23) provided sufficient safeguards of reliability to meet the "particularized guarantees of trustworthiness" standard set forth in Roberts. Perez, however, was rendered before the United States Supreme Court issued its ruling in Idaho v. Wright,
497 U.S. 805,
110 S.Ct. 3139,
111 L.Ed.2d 638 (1990), under which Townsend now contends that section
90.803(23) is unconstitutional....
...otality of the circumstances surrounding the making of the statement. The Court noted, however, that in determining the reliability of such a statement, a court cannot look to corroborating evidence to show the truth of the statement to be admitted. Section 90.803(23)(a)(2)b. requires that other corroborating evidence must exist before the hearsay evidence of an unavailable witness can be admitted. Because of these apparently inconsistent requirements, Townsend maintains that section 90.803(23) violates Wright's mandate that a court not look to corroborating evidence to show the truth of the statement to be admitted. Although section 90.803(23)(a)(2)b. does require that other corroborating evidence must exist before hearsay evidence can be admitted, this requirement is in addition to the requirement that the hearsay evidence, in and of itself, must be reliable. See § 90.803(23)(a)(1) *957 (the trial judge must determine that the time, content, and circumstances of the statement provide sufficient safeguards of reliability)....
...This acts as a safeguard to protect the interests of the accused, which traditionally has been one of the basic underlying reasons for not allowing hearsay testimony in criminal trials. To clarify, however, any possible inconsistencies between the United States Supreme Court's decision in Wright and the requirements of section 90.803(23), we hold that under section 90.803(23), the trial judge must adhere to the following procedure: First, the trial judge must determine whether the hearsay statement is reliable and from a trustworthy source without regard to corroborating evidence....
...If the answer is yes, then the trial judge must determine whether other corroborating evidence is present. If the answer to either question is no, then the hearsay statements are inadmissible. Under this procedure, we specifically find that the procedural requisites of section 90.803(23) are sufficient to meet the constitutional requirements of both the federal and Florida Constitutions. The failure of a trial judge to follow this procedure would render this exception to the hearsay rule unconstitutional under the dictates of the United States Supreme Court's decision in Wright. Having determined that the procedural requisites of section 90.803(23) properly protect the constitutional rights of an accused, we address the second portion of Townsend's confrontation clause argument, i.e., whether in this case the trial judge properly adhered to the reliability requirements of that section in ruling on the admissibility of this child's hearsay statements....
...Clearly, both Roberts and Wright stand for the proposition that the reliability determination as to the admissibility of hearsay evidence is critical to the protection of an accused's rights under the confrontation clause. Accordingly, it is essential that the trustworthiness and reliability requirements of section 90.803(23) be strictly followed....
...lso Hopkins v. State,
632 So.2d 1372 (Fla. 1994) (failure to make specific findings of fact under section
92.54, Florida Statutes (1989), which section impacts the same constitutional guarantees as those at issue here, constitutes reversible error). Section
90.803(23)(a)(1) mandates that the trial judge, in a hearing conducted outside the presence of the jury, determine whether a hearsay statement is trustworthy and reliable by examining the "time, content, and circumstances" of the statement....
...d physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate. § 90.803(23)(a)(1)....
...valid. Id. When an expert testifies regarding how a child behaved with anatomically correct dolls, the expert is repeating the communications of the child witness. For this reason, a trial court must evaluate such testimony under the requirements of section 90.803(23) just as with any other hearsay statement of a child abuse victim....
...mments of Dr. J.M. Whitworth). In any event, courts must take great care to ensure the reliability of the statements admitted at trial. Likewise, statements of identity are not admissible in this type of case absent a reliability determination under section
90.803(23). State v. Jones,
625 So.2d 821 (Fla. 1993) (statements of fault or identity are not admissible under the medical diagnosis hearsay exception contained in section
90.803(4) but may be admissible under section
90.803(23) if they meet the requirements of that section). Consequently, as with other child victim hearsay statements, the trial judge was required to review and make specific factual findings under the strict trustworthiness and reliability requirements of section
90.803(23) as to the admissibility of the child's verbal communications to the psychologist and of the communications observed by the psychologist through the use of anatomical dolls....
...w. For example, the failure of a trial judge to make sufficient findings under the statute, in and of itself, does not constitute fundamental error. Hopkins; Seifert v. State,
616 So.2d 1044 (Fla. 2d DCA) (a trial court's insufficient findings under
90.803(23) do not equate with fundamental error), review granted,
626 So.2d 207 (Fla. 1993); Jones v. State,
610 So.2d 105 (Fla. 3d DCA 1992) (issue of whether findings were sufficient under section
90.803(23) not preserved for review because no contemporaneous objection made to the findings), review denied,
620 So.2d 761 (Fla....
...nd the treating psychologist. The medical doctor's testimony was not conclusive with respect to sexual abuse, and, as indicated previously, much of the treating psychologist's testimony was never subjected to a proper reliability determination under section 90.803(23)....
...Whitworth) (emphasis added). In rendering this decision, we can only hope that in the future greater care will be taken to properly preserve testimony in this type of case and that judges will carefully adhere to the trustworthiness and reliability requirements set forth in section 90.803(23), Florida Statutes....
CopyCited 76 times | Published | Supreme Court of Florida | 2006 WL 560586
...spect, the State introduced testimony from Milman, another tenant at the Lee Street home. The defense objected to the evidence, arguing it was inadmissible hearsay and not an exception to the hearsay rule. The trial court allowed the testimony under section 90.803(3), Florida Statutes (1999), as pertaining to Hernandez's state of mind that he intended to go out of town on the weekend of the murders. Section 90.803(3) provides, in pertinent part: [T]he following are not inadmissible as evidence, even though the declarant is available as a witness: ....
...ind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to: . . . . 2. Prove or explain subsequent acts of subsequent conduct of the declarant. § 90.803(3), Fla. Stat. (1999). A hearsay statement of intent or plan is admissible under section 90.803(3) when offered to "[p]rove or explain acts of subsequent conduct of the declarant." § 90.803(3)(a)(2)....
...nlyn told him that he was going to escape, get a shotgun, and kill the first person he saw with a car. In affirming the trial court's denial of Monlyn's motion to suppress the statement, we said, "This is exactly the kind of evidence contemplated by section 90.803(3)(a)2 ....
...hat the statement "I'm Pablo" was hearsay. The State argued that it was a spontaneous statement. The court overruled the objection. Later, San repeated the statement, and defense counsel objected on relevancy grounds. The hearsay exceptions statute, section 90.803 provides that various types of evidence are not inadmissible, including spontaneous statements, defined as follows: (1) Spontaneous statement....
... A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness. § 90.803(1), Fla....
...n of the event or condition described." J.M. v. State,
665 So. 2d 1135, 1137 (Fla. 5th DCA 1996). This exception requires that "the statement must be made without the declarant first engaging in reflective thought." Id. The statements admitted under section
90.803(1) are limited to statements which "describe or explain" an event....
...Because the statement "I'm Pablo" did not describe or explain an event, the trial court should have sustained the objection. Although we find the statement inadmissible as a spontaneous statement, we find it was admissible as an admission by the defendant pursuant to section 90.803(18), Florida Statutes (1999)....
...This exception to the hearsay rule provides for the admission into evidence of a statement by a party that is offered against that party. It is undisputed that the statement was made by the defendant and it was being offered against him. Therefore, it was admissible under 90.803(18)....
CopyCited 74 times | Published | Supreme Court of Florida | 1999 WL 215347
...of the homicide. We disagree. Hearsay is defined as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." See §
90.801(1)(c), Fla. Stat. (1995). Section
90.803(3)(a) of the Florida Statutes provides an exception to the hearsay rule: (3) THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION. (a) A statement of the declarant's then-existing state of mind, emotion, or physical sensation, incl...
...h, when such evidence is offered to: 1. Prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action. 2. Prove or explain acts of subsequent conduct of the declarant. § 90.803(3)(a)1.-2., Fla....
...State,
595 So.2d 929, 931-32 (Fla.), vacated on other grounds,
506 U.S. 803,
113 S.Ct. 33,
121 L.Ed.2d 6 (1992); Downs v. State,
574 So.2d 1095, 1098 (Fla.1991); Charles W. Ehrhardt, Florida Evidence § 803.3a, at 649 (1998 ed.). As Woods correctly points out, under section
90.803(3)(a)1., a homicide victim's state of mind prior to the fatal event generally is neither at issue nor probative of any material issue raised in the murder prosecution....
CopyCited 68 times | Published | Supreme Court of Florida | 29 Fla. L. Weekly Fed. S 345
...5th DCA 1982)). The essential inquiry thus becomes whether a reasonable person would have denied the statements under the circumstances. Id. (citing McCormick, Evidence, § 270 (2d ed.1972)). Florida has incorporated this rule into its Evidence Code as section 90.803(18)(b), Florida Statutes (2003), which expressly creates a hearsay exception for "[a] statement that is offered against a party and is: ......
...A review of the transcript in this case makes it clear that Busby's statements were adopted by Globe. Instead of contradicting Busby's statements, Globe verbally affirmed what Busby said and added significant details to Busby's statement. The statements were properly admitted as adoptive admissions [5] pursuant to section 90.803(18)(b)....
CopyCited 65 times | Published | Florida 1st District Court of Appeal | 2004 WL 2600408
...m in his possession. It follows that the statement was not admissible in evidence unless it falls within one of the statutory exceptions to the hearsay rule. The state argues that the statement was admissible under the excited utterance exception in section 90.803(2), which authorizes the admission of "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition," notwithstanding the general prohibition against hearsay....
...A person who is startled and excited does not have the capacity to analyze the facts or to make a conscious misrepresentation of the event. A statement made during a period of excitement is therefore less likely to be contrived. Florida courts have drawn three elements from the text of section 90.803(2)....
...itted in evidence. An out-of-court statement is not admissible merely because it meets the definition of an excited utterance. In fact, the drafters of the Florida Evidence Code were careful not to leave this impression. The introductory language of section 90.803 states that an excited utterance is "not inadmissible" under the rule forbidding the use of hearsay....
CopyCited 65 times | Published | Supreme Court of Florida | 1994 WL 11604
...essity required by Maryland v. Craig . Before we determine whether this error requires reversal of the convictions, we address a second evidentiary issue raised by Hopkins. Hopkins argues that the trial court failed to make sufficient findings under section 90.803(23) [3] to admit the out-of-court statements of the child victim....
...iency of the judge's findings as to that reliability. Counsel was not required to specify each finding of fact to which he was objecting. Turning to the merits of the claim, we find that the trial court's findings did not satisfy the requirements of section 90.803(23)....
...tatements were in fact reliable. Failure to make specific findings not only ignores the clear directive of the statute, but also implicates the defendant's constitutional right to confrontation. See Perez v. State,
536 So.2d 206 (Fla. 1988) (finding section
90.803(23) constitutional and discussing interrelation with the Confrontation Clause), cert....
...at 1022,
108 S.Ct. at 2803. In the instant case, neither the victim's testimony by closed circuit television nor her out-of-court statements were properly admitted due to the court's failure to make the specific findings required by sections
92.54 and
90.803(23)....
...than personally appearing in court. See §
92.53, Fla. Stat. (1987). Because that statute impacts the same constitutional guarantee of face-to-face confrontation that is at issue in the instant case, the reasoning in Leggett is applicable here. [3] Section
90.803(23)(a), Florida Statutes (1989), provides that before an out-of-court statement by a child victim of sexual abuse can be admitted the court must conduct a hearing outside the presence of the jury to determine: that the time, content, and circumstances of the statement provide sufficient safeguards of reliability....
CopyCited 59 times | Published | Supreme Court of Florida | 2008 WL 2612083
...That discretion, however, is limited by the rules of evidence. Johnston,
863 So.2d at 278. The State contends on appeal, as it did below, that Peller's statements made during the telephone call to Pritchard qualified as either spontaneous statements or excited utterances under section
90.803, Florida Statutes (2004). The trial court admitted the testimony without indicating on which evidentiary basis. Section
90.803(1) and (2), Florida Statutes (2004), sets forth the two pertinent exceptions to the rule prohibiting hearsay evidence: (1) SPONTANEOUS STATEMENT.A spontaneous statement describing or explaining an event or condition made while the de...
...orthiness. (2) EXCITED UTTERANCE.A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. The excited utterance exception contained in section 90.803(2) requires that the "statement or excited utterance" relate to "a startling event or condition" and be made while the declarant was under the stress of excitement caused by the event or condition....
...announced he was there to murder Peller. The presence of Hudson with a gun and an announced intent to kill Peller, as described by Peller in his telephone call to Pritchard, was a sufficiently startling condition or event to meet the requirements of section 90.803(2)....
...y a friend does not lessen the obvious anxiety that death was a possibility because he was "underselling another drug dealer." Nor is the fact that Peller's voice did not sound excited determinative of whether his statements meet the requirements of section 90.803(2) as an excited utterance. Section 90.803(2) allows admission of either "a statement or excited utterance" so long as the statement is made " relating to a startling event or condition" and is made while the declarant is "under the stress of excitement caused by the event." § 90.803(2), Fla....
...avoid being overheard. These facts indicate the possibility that Peller did not sound excited because he was consciously attempting not to be overheard in his telephone call. We conclude that Peller's statements to Pritchard meet the requirements of section 90.803(2) for statements relating to a startling event or condition while under the stress or excitement of the event or condition. [7] Because the statements related in Pritchard's testimony were admissible under subsection (2) of section 90.803 as an excited utterance, the trial court did not abuse its discretion in admitting Pritchard's testimony....
...[6] Detective Brad Libman testified that in the interview with detectives on October 31, 2001, Hudson discussed the fact that Peller was involved in bonding Hudson out of jail in the past. [7] We need not address the admissibility of the statements under the spontaneous statement exception contained in section 90.803(1) because we conclude they were admissible under section 90.803(2)....
CopyCited 55 times | Published | Supreme Court of Florida | 2007 WL 1933048
...The trial court overruled the objection on the first of these grounds because the State could have excused Vitale and recalled him to the witness stand solely to elicit the statement. The court further concluded that the statement fell within the exception to the hearsay rule for excited utterances, which is contained in section 90.803(2), Florida Statutes (2006)....
...to Vitale. Hearsay within hearsay is admissible if each part of the statement falls within an exception to the hearsay rule. §
90.805, Fla. Stat. (2006). Johnson's statement to Vitale falls under the party admission exception to the hearsay rule in section
90.803(18)(a), Florida Statutes (2006)....
...[3] The excited utterance exception authorizes admission of hearsay containing "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." §
90.803(2), Fla. Stat. A statement is an excited utterance under section
90.803(2) if it was made (1) regarding an event startling enough to cause nervous excitement, (2) before there was time to contrive or misrepresent, and (3) while the person was under the stress or excitement caused by the event. Henyard v. State,
689 So.2d 239, 251 (Fla.1996). Although Johnson challenges admission of the statement under section
90.803(2), he does not dispute that the statement was made while the declarant was under the stress of an event startling enough to cause nervous excitement....
...State,
660 So.2d 237, 240 (Fla.1995) (citing Charles W. Ehrhardt, Florida Evidence § 803.2 (1994 ed.)). We disagree with both contentions. First, a statement need not describe or refer to the exciting event to qualify as an excited utterance. The exception for spontaneous statements in section
90.803(1) is limited to statements " describing or explaining an event or condition," but section
90.803(2) more broadly encompasses statements " relating to a startling event or condition." (Emphases supplied.) Rejecting an argument that confused the spontaneous statement and excited utterance exceptions, the Third District ruled that in...
...The Third District concluded that the woman's statement "sufficiently `relates' to the event causing the excitement, namely, the serious automobile accident." Id. In this case, Hagin's statement as she was being strangled also sufficiently relates to the startling event, her strangulation, to satisfy this criterion of section 90.803(2)....
...Here, the statement was contemporaneous with the startling event, and neither the statement itself nor the circumstances in which it was made indicate the type of reflective thought that could result in fabrication. [4] In sum, the statement meets each of the criteria for an excited utterance under section 90.803(2)....
...State,
523 So.2d 562, 565 (Fla.1988). Each of these cases concerned a statement by a victim to a third person expressing fear of the defendant before a murder, which we ruled inadmissible under the state of mind exception to the hearsay rule contained in section
90.803(3)....
...Accordingly, the potential for unfair prejudice in Hagin's statement that she wanted her children did not "substantially outweigh" the statement's probative value. We conclude that the trial court acted within its discretion under the rules of evidence, specifically sections
90.403 and
90.803(2), in allowing the State to introduce the statement over defense objection....
...State has not argued to the contrary. [4] Testimony earlier in the trial indicated Hagin did have children. [5] Because it has not been argued, we do not address whether the statement could have been introduced under the "state of mind" exception in section 90.803(3), on the elements of the victim's confinement against her will essential to kidnapping and lack of consent essential to sexual battery....
CopyCited 55 times | Published | Florida 4th District Court of Appeal | 31 Fla. L. Weekly Fed. D 2178
...as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness." [e.s.] § 90.803(8), Fla....
...a specific qualifying offense which, it turns out, is within the statutorily prescribed period for sentencing under HVFO. We think that this statement by a named FDOC official is entitled to be recognized as a public record within the meaning of section 90.803(8)....
CopyCited 53 times | Published | Supreme Court of Florida | 1996 WL 399853
...tion for mistrial based on wrongful admission of hearsay evidence over Foster's objection. At trial, the State sought, under the coconspirator exception to the hearsay rule, to introduce hearsay statements made by the participants of the crimes. See § 90.803(18)(e), Fla....
...tements. On appeal, Foster asserts that the admission of hearsay statements by Booker and Catholic was improper because the State failed to establish the existence of the conspiracy by evidence independent of the hearsay statements. We do not agree. Section 90.803(18)(e), Florida Statutes (1993), provides an exception to the general rule that hearsay statements are inadmissible as evidence....
CopyCited 51 times | Published | Supreme Court of Florida | 1988 WL 43388
...Public Defender, West Palm Beach, for respondent. GRIMES, Justice. This case is before us to answer the following question certified to be of great public importance in Jano v. State,
510 So.2d 615, 620 (Fla. 4th DCA 1987): Whether out-of-court statements of a child are admissible under section
90.803(1) or (2), Florida Statutes, where they refer to a series of prior events which the testimony does not establish as having occurred simultaneously with or immediately preceding the hearsay statement of the victim....
...estify, nor whether she would have been competent to do so. The incriminating evidence against Jano consisted substantially of testimony admitted under either the spontaneous statement or excited utterance exceptions to the hearsay rule contained in section 90.803(1) and (2), Florida Statutes (1979). Section 90.803(1) and (2), Florida Statutes (1979), provides: *661 (1) SPONTANEOUS STATEMENT....
...However, Jano contends that he was not the person who perpetrated the acts upon her. The Fourth District Court of Appeal found that the child's hearsay statements did not fall within the spontaneous statement or excited utterance exceptions, reversed Jano's conviction and remanded for a new trial. Because section 90.803(1) requires that the statements be made while the declarant is perceiving the event or condition or immediately thereafter, the state conceded at oral argument that the child's statements did not fall within the scope of that exception. The state contends, however, that the statements were made while the child was still under the stress of excitement caused by the event or condition and, as a consequence, they were admissible as excited utterances under section 90.803(2)....
...The spontaneous statement exception and the excited utterance exception often overlap. However, as noted by Professor Ehrhardt: The two exceptions differ mainly in the amount of time that may lapse between the event and the statement describing the event. Under Section 90.803(2) it is not necessary that there be contemporaneity between the event and the statement. As long as the excited state of mind is present when the statement is made, the statement is admissible if it meets the other requirements of Section 90.803(2)....
...If a person involved in an automobile accident is rendered unconscious, a statement made a number of days after the accident when he or she regains consciousness can be admitted as an excited utterance if it was made while the person was excited about the accident. Under *662 Section 90.803(2) the statement must only "relate" to the event causing the excitement; Section 90.803(1) is limited to statements which "describe or explain" the event....
...Because of the manner in which it is phrased, the certified question can only be answered "sometimes." It is evident that some out-of-court statements may be admitted as excited utterances even though they were not made contemporaneously or immediately after the event providing they meet the requirements of section 90.803(2)....
...cause it would be unlikely that the declarant would still be under the stress of excitement caused by the event. While under some circumstances the age of the declarant might justify the admission of such a statement, we cannot stretch the limits of section 90.803(2) to accommodate the position of the state in this case....
...child was under the stress of excitement caused by the abuse. While not dispositive with respect to this opinion, we note that subsequent to the trial of this case, the legislature responded to the policy arguments now made by the state by enacting section 90.803(23), Florida Statutes (1985)....
CopyCited 50 times | Published | Florida 1st District Court of Appeal | 2005 WL 1711746
...The defense presented no evidence to the contrary. It is a waste of time, money, and judicial effort to require resentencing in this case. NOTES [1] Since July 1, 2003, it has also been possible to establish the predicate for business records "by a certification or declaration that complies with [section 90.803(6)](c) and s....
CopyCited 47 times | Published | Supreme Court of Florida | 1988 WL 128166
...Robert A. Butterworth, Atty. Gen., and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for respondent. EHRLICH, Chief Justice. We have for review Perez v. State,
500 So.2d 725 (Fla. 5th DCA 1987), in which the district court expressly declared valid section
90.803(23), Florida Statutes (1985)....
...ld regarding the alleged assault to his mother, Officer Matay, and Detective Massie. Perez made pretrial motions to exclude the child victim's hearsay statements from admissibility in evidence at trial, to compel the child to testify, and to declare section 90.803(23), Florida Statutes, the hearsay exception for statements of a child victim of sexual abuse, unconstitutional. The trial court denied Perez' motions to declare section 90.803(23) unconstitutional and to compel the child to testify....
...The recommended guidelines sentence was any nonstate prison sanction. The trial court withheld adjudication and placed Perez on probation for a period of three years with certain applicable conditions. On appeal, the district court affirmed, holding that the provisions of section 90.803(23), Florida Statutes (1985), "meet the requirements of the confrontation clause of the federal constitution (U.S....
...Roberts,
448 U.S. 56, 65,
100 S.Ct. 2531, 2538,
65 L.Ed.2d 597, 607 (1980), and of the Florida constitution (Art. I, § 16, Fla. Const.)."
500 So.2d at 726. The district court also found that the trial judge in this case correctly followed the provisions of section
90.803(23). Id. Perez now challenges these determinations. Perez first contends that section
90.803(23) is unconstitutional, arguing that it denies a defendant the opportunity to confront adverse witnesses by cross-examining declarants whose statements are introduced at trial, thereby violating both the sixth amendment to the United States Constitution [2] and article I, section 16, of the Florida Constitution....
...Reliability may be inferred without more where the evidence falls within a firmly rooted hearsay exception. If the evidence does not fall within a firmly rooted hearsay exception, there must be a showing of "particularized guarantees of trustworthiness." Id.
448 U.S. at 66,
100 S.Ct. at 2539. [4] Section
90.803(23), Florida Statutes (1985), follows the general approach set forth by the United States Supreme Court in Ohio v. Roberts . The hearsay exception for statements of a child victim of sexual abuse is not a firmly rooted exception, and by its terms is to be used when the child's out-of-court statement is "not otherwise admissible." §
90.803(23)(a), Fla....
...be unavailable as a witness. If the child testifies, the defendant has been afforded an opportunity to confront the hearsay declarant. See California v. Green,
399 U.S. 149,
90 S.Ct. 1930,
26 L.Ed.2d 489 (1970). If the child victim does not testify, section
90.803(23) requires, in addition to a determination that the child is unavailable, "other corroborative evidence of the abuse or offense," which provides particularized guarantees of trustworthiness. We agree with the district court below that section
90.803(23) comports with the requirements of the confrontation clauses of both the federal constitution and the Florida Constitution....
...ng the reliability of the child victim's statements are too vague to guarantee an accused defendant that the statements bear sufficient indicia of reliability. The reliability of a hearsay declaration is a question to be determined by the court. See § 90.803(23)(a)(1), Fla....
...330, 333,
78 L.Ed. 674 (1934)). Although the legislature provided a list of various elements that the court may consider in determining whether the time, content, and circumstances of the child victim's statement provide sufficient safeguards of reliability, section
90.803(23)(a)(1), Florida Statutes (1985), the list is not exhaustive, as demonstrated by that portion of the subsection which provides that the court may also consider "any other factor deemed appropriate." Indeed, there could be no exhaustive list of elements to be considered....
...1844,
64 L.Ed.2d 267 (1980) (trial court decision as to whether an infant of tender years has sufficient mental capacity and sense of moral obligation to be competent as a witness will not be disturbed absent a manifest abuse of discretion). The trial judge properly followed the requirements of section
90.803(23) by making specific findings of fact on the record as to the basis for determining that requiring the child to participate in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, thereby rendering the child unavailable as a witness....
...The trial court's determination is supported by competent, substantial evidence. Accord Robinson, 735 P.2d at 813. Because the court determined the child was unavailable due to the likelihood of substantial emotional harm if required to participate in the proceedings, section 90.803(23)(a)(2)(b) requires other corroborative evidence of the abuse....
...The child's statements are consistent and the child-like description of the act gives his statement the ring of truth. The testimony presented adequately demonstrated that the child accurately perceived and related the circumstances of the offense. In summary, we hold that section 90.803(23), Florida Statutes (1985), is constitutional....
...ble based solely on third party statements. I feel the procedure would better meet constitutional objections if the judge personally saw and examined the child in camera. SHAW and KOGAN, JJ., concur. SHAW, Justice, concurring specially. I agree that section 90.803(23), Florida Statutes (1985), is constitutional....
...In those cases where the hearsay is the primary evidence, showing both that the crime was committed and that it was committed by the defendant, it is imperative that the indicia of reliability be clearly established. This, in my opinion, would normally require that the judge personally examine the child. NOTES [1] Section 90.803(23), Florida Statutes (1985), provides: HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM OF SEXUAL ABUSE OR SEXUAL OFFENSE AGAINST A CHILD....
...." [4] Noting the similarities between the confrontation clauses of the federal and Florida constitutions, we perceive no reason to interpret article I, section 16, of the Florida Constitution any differently than its federal counterpart in regard to this issue. [5] Further support in favor of determining that section 90.803(23) is constitutional can be found in United States v....
CopyCited 45 times | Published | Supreme Court of Florida | 1997 WL 377595
...admissible. The first of these items of evidence was Angel Bonilla's testimony that appellant told Bonilla he carried a gun and he would kill a police officer before he would go back to jail. We conclude that the statement is admissible pursuant to section 90.803(3)(a)(1),(2), Florida Statutes (1989)....
...relevant to the California shoot-out were admitted as exhibits in the trial. However, the record forwarded to this Court contains only three photographs of the shoot-out scene and a photograph of the injured California law enforcement officer. [11] Section 90.803(3)(a)(1) and (2), Florida Statutes (1989), provides, in relevant part, a hearsay exception for: (3) THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION. (a) A statement of the declarant's then existing state of mind, emotion, or p...
CopyCited 41 times | Published | Florida 2nd District Court of Appeal | 1988 WL 137176
...The time of the out of court statements, relative to the time of the incident charged and the circumstances of the statements, are critical to a determination of reliability. See Perez v. State,
536 So.2d 206 (Fla. 1988). That testimony, offered under section
90.803(23), Florida Statutes (1985), was relied on as substantive evidence....
...which to sustain appellant's convictions of the sexual battery by penetration of his daughter and stepdaughter. State v. Moore,
485 So.2d 1279 (Fla. 1986). To hold otherwise would put us in conflict with Moore. Moreover, we do not find the intent of section
90.803(23) is to allow the state to breathe substantive reliability into such prior inconsistent statements when they are otherwise admissible only to impeach those prosecuting victim witnesses whose testimony is introduced by the state at trial. Before it is admissible, evidence offered under section
90.803(23) must, like any other evidence, also comply with all applicable evidentiary rules of admissibility and purpose. The rule that prior inconsistent statements may not be used substantively as the sole evidence to convict ( see Moore ), applies to Section
90.803(23) evidence as well....
...r the facts of this case violated appellant's sixth amendment right to confrontation and cross-examination. See Moore,
485 So.2d at 1282 (Overton, J., concurring specially); Everett v. State,
530 So.2d 413 (Fla. 4th DCA 1988). Moreover, to interpret section
90.803(23) otherwise would allow that section to be used to avoid the provision of section
90.608(1) that prohibits a party from impeaching his or her own witness....
...'s and stepdaughter's out of court prior inconsistent statements. The first of those problems is that such statements may only be introduced after the trial judge makes specific findings of fact, on the record, to support his finding of reliability. § 90.803(23)(a)1 and (c), Fla. Stat. (1985). The trial judge made no such findings in this case. He merely recited into the record the boiler plate language of the statute in 90.803(23)(a)1....
...It seems to place the trial judge in the position of determining the credibility of witnesses. Second, but no less significant, is the fact that as to appellant's daughter and stepdaughter, the out of court statements could only have been introduced if the children testified or were unavailable as witnesses. § 90.803(23)(a)2, Fla....
...State,
503 So.2d 335 (Fla.2d DCA 1987), affirmed,
536 So.2d 212 (Fla. 1988) (Glendening I and Glendening II) that, under the circumstances there, such video tape testimony of a child witness was equivalent to personal testimony for the purposes of
90.803(23)(a)2, we have serious reservations concerning Glendening's applicability to the circumstances of this case....
...*326 We, therefore, conclude that the Glendening decisions do not apply to the circumstances of this case involving appellant's daughter and stepdaughter. Neither this court nor the supreme court in the Glendening decisions discuss, though the issue was apparently present in that case, the question of the propriety of using section 90.803(23) testimony to impeach the child victim's principal testimony offered by the state at trial. Section 90.803(23), by its clear language, seems intended as a means only for the state to offer such evidence....
...Because I do not find the out-of-court statements to be the only evidence *332 of penetration, I disagree with the majority that "to hold otherwise would place us in conflict with Moore." The majority further disapproves of the trial court's admission of these out-of-court statements introduced under section 90.803(23) on various grounds. Initially, the majority concludes that the intent of section 90.803(23) was not to allow these statements, which are contradictory to two of the victims' testimonies at trial, to be used as substantive evidence in the state's case....
...dmissible for purposes of impeaching the state's own witnesses, see §
90.608(1), Fla. Stat. (1985), these statements were nonetheless admissible as substantive evidence of these offenses (although not as the sole substantive evidence, Moore ) under section
90.803(23), Florida Statutes (1985), which was the purpose for their introduction by the state. Although one may question the decision of the state to introduce the exculpatory video taped testimonies of the Jaggers children, which was contradictory to the section
90.803(23) statements, nothing in that statute indicates a contrary intent, as proposed by the majority, than to allow admission of these out-of-court statements as substantive evidence to prove the acts of abuse. Next, the majority concludes that the trial court did not make the proper findings of reliability of the out-of-court statements as required under section
90.803(23)(a)1 and (c)....
...The majority also disapproves of the introduction of these statements on the ground that no determination was made that the Jaggers children were unavailable to testify at trial and that their video taped testimony could not be equated with their being present to testify at trial as required under section
90.803(23)(a)2. The supreme court in Glendening,
536 So.2d at 216, unequivocally held that video taped testimony of a child witness is the equivalent of testifying in open court for purposes of satisfying the requirement of testifying under section
90.803(23)(a)2 necessary for the introduction of the hearsay statements....
...admissible in any trial or proceeding in which such witness testifies by use of closed circuit television pursuant to s.
92.54. (7) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this section. [2] Section
90.803(23)(a) requires the statement be that of "describing any act of child abuse, sexual abuse or any other offense involving an unlawful sexual act... ." In other words, it is evidence that tends to prove an act of abuse and thus clearly is for the sole benefit of the state. In addition, section
90.803(23)(b) provides for notice of intent to use such statements only to a defendant....
CopyCited 41 times | Published | Supreme Court of Florida | 2001 WL 326683
...Also, if you can, I need some money for diapers. She's almost out and I'm flat broke. Call me." This message was deleted from Davis's computer at work at 7:03 a.m. on April 25, the morning after the murders. The trial court allowed this testimony as an exception to the hearsay rule under section 90.803(3), Florida Statutes (1997), which provides an exception for evidence of the state of mind of the maker of the statements when such state of mind is relevant to an issue at trial....
...he night of the murders. We agree. Hearsay is defined as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." §
90.801(1)(c), Fla. Stat. (1997). Section
90.803 provides an exception to the hearsay rule and that the following are not inadmissible as evidence, even though the declarant is available as a witness: (3) Then-Existing Mental, Emotional, or Physical Condition. (a) A statement of th...
...h, when such evidence is offered to: 1. Prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action. 2. Prove or explain acts of subsequent conduct of the declarant. § 90.803(3), Fla. Stat. (1997). Under this exception, however, a declarant's statement *771 of intent under section 90.803(3) is only admissible to infer the future act of the declarant, not the future act of another person....
...In response to this evidence, the defendant claimed that his fingerprints were in her car because even after their break-up, the victim would visit him and would allow him into her car. To rebut this explicit claim, the State sought to introduce statements under § 90.803(3)(a)(1) made by the victim to her daughter expressing fear of her ex-boyfriend....
...In the instant case, the State sought and was permitted to introduce the statements in its case-in-chief, not as rebuttal evidence. Second, and more importantly, because the State used the statements to show Brooks' subsequent acts of driving to Crestview with Carlson, their admission was error. As noted earlier, under section 90.803(3), *772 statements of intent can ordinarily be used to prove the subsequent acts of the declarant, not a defendant....
...d be able to tie him to that man. She understood smoking the dip with the baby to mean that he would have to "kill that girl, the baby." As noted, the trial court also allowed these statements under the state of mind exception to the hearsay rule of section 90.803(3). On appeal, the State now argues that they were properly admitted as statements of a co-conspirator under section 90.803(18)(e), claiming that a conspiracy existed between Davis, Brooks and Mark Gilliam. However, the State's argument on appeal is without merit because to qualify under the co-conspirator exception of section 90.803(13)(e), a statement must be made during the course of the conspiracy and in furtherance of it. See § 90.803(18)(e), Fla....
...[4] The State contends that these statements should be admitted even though they were made by Davis because of the close and inseparable connection between Brooks and Davis during Brooks' visit and stay in Florida. However, by this argument the State is ignoring the limitations of the co-conspirator hearsay exception of section 90.803(13)(e), which requires (1) that these statements be made during and in furtherance of a conspiracy, and (2) that independent evidence establish the conspiracy before the statements are allowed....
...erefore, those statements are devoid of the requisite trustworthiness contained in the co-conspirator exception. The statements are clearly hearsay not covered by any other recognized exception to the hearsay rule. As earlier noted, it is clear that section 90.803(3) allows the admission of a declarant's statements to prove only the declarant's state of mind or to explain or prove only the declarant's subsequent conduct....
...In Sandoval, the defendant sought to introduce her codefendant's statements to show the defendant's state of mind and to explain her actions. The trial court sustained the State's objection to the introduction of the evidence. On appeal, the Third District agreed with the trial court and held: [S]ection [90.803(3)] permits the admission of a declarant's statements to prove the declarant's state of mind or explain the declarant's subsequent conduct....
...As with Jones' statements, the trial court admitted this testimony under the co-conspirator exception to the hearsay rule. The State contends that the testimony of these witnesses was properly admitted under the co-conspirator exception to the hearsay rule. We must again review that exception. Section 90.803(18)(e) provides that "[a] statement by a person who was a co-conspirator of the party [made] during the course and in furtherance of the conspiracy" is not inadmissible as evidence even though the declarant is unavailable as a witness....
...State,
676 So.2d 394, 406 (Fla.1996) (holding that defendant's calculated plan to murder the victim involving conspirational association with her son was sufficient to establish the existence of a conspiracy and made her son's hearsay statements admissible against the defendant under section
90.803(18)(e)); Romani v. State,
542 So.2d 984, 986 (Fla.1989) (holding that sufficient evidence existed to find that a conspiracy existed for purposes of section
90.803(18)(e) where co-conspirator's statement that defendant offered to pay $10,000 to anyone who would commit the murder was corroborated by evidence that the defendant withdrew $10,000 from her bank account, deposited it into another account and later withdrew it again). Notwithstanding the finding of a conspiracy, however, we find it was error *779 to admit Davis's statements to Jones and Barberree made after the murders. As noted previously, to be admissible under section
90.803(18)(e), statements must be made during and in furtherance of the conspiracy. Florida courts have consistently held that for purposes of section
90.803(18)(e), a conspiracy ordinarily ends when the crime has been committed....
...nspiracy to cover up the original crime." Id. at 719 (citing Krulewitch v. United States,
336 U.S. 440, 444,
69 S.Ct. 716,
93 L.Ed. 790 (1949)). Applying this rule, the First District held that the trial court had erred in admitting statements under section
90.803(18)(e) that were made after the crimes were committed in the absence of evidence demonstrating that the statements were made during the continuation of the conspiracy and the agreement it encompassed....
...As such, the admission of this evidence constituted reversible error. See, e.g., Selver v. State,
568 So.2d 1331 (Fla. 4th DCA 1990); Bailey v. State,
419 So.2d 721 (Fla. 1st DCA 1982). In Bailey for example, the court held that hearsay statements admitted under section
90.803(3), which tended to establish a motive for the defendant to have committed the homicide, could not be deemed harmless where the State's evidence was *780 almost wholly circumstantial....
...[3] At trial, Brooks objected to statements Davis made to Sievers a few days after the murders to the effect that if Davis had killed the victims, he would have shot them rather than stab them. The State sought to introduce these statements under the state of mind exception of section 90.803(3)(a) to show that even though his baby had just been killed, Davis nevertheless was talking about how he would have done it....
CopyCited 40 times | Published | Supreme Court of Florida | 1993 WL 166316
...Regardless of the purpose for which the State claims it offered the evidence, the State used the evidence to prove the truth of the matter asserted. [4] In so doing, the statement constituted hearsay and fell within no recognized exception to the rule of exclusion. See § 90.803, Fla....
...When the State asked Dr. Turner what she had told him, Conley objected on the ground of hearsay. The trial court overruled the objection in favor of the State's argument that the evidence, although hearsay, was admissible under the medical diagnosis exception codified in section 90.803(4), Florida Statutes (1989)....
...(Emphasis supplied.) He said she did not know whether the assailant had ejaculated. From this information, he decided to conduct anal, vaginal, and oral examinations and to check for evidence of sperm. On review, the District Court found no abuse of discretion. We disagree and find that the District Court's application of section 90.803(4) conflicts with our holding in Torres-Arboledo v....
...901,
109 S.Ct. 250,
102 L.Ed.2d 239 (1988). There, *184 an examining physician testified that the victim said "a couple of black people tried to steal his medal and shot him." We held that the portion of the statement about having been shot was admissible under section
90.803(4) because it was reasonably pertinent to the diagnosis or treatment of the victim's wounds....
...rse. This was done, as she stated, at gunpoint." Except for the testimony that the assault occurred at gunpoint, the majority concedes that the victim's statements to the physician are admissible under the medical treatment exception set forth in subsection 90.803(4), Florida Statutes (1989)....
...The prosecutor's remarks compounded the error and shed light on the purpose for which the evidence was introduced. [5] Arguably this was double hearsay because the dispatch report allegedly repeated what an unidentified caller had told the police dispatcher. [6] Section 90.803(4), Florida Statutes (1989) provides for the admission of: Statements made for the purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment ......
CopyCited 40 times | Published | Supreme Court of Florida | 2003 WL 1344834
...requirements of law was substantially impaired. [7] An excited utterance is "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." § 90.803(2), Fla....
...[8] A spontaneous statement is "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness." § 90.803(1), Fla. Stat. (1999). [9] Section 90.803(3), Florida Statutes (1999), provides for admission of testimony as to the following matters: (3) Then-existing mental, emotional, or physical condition. (a) A statement of the declarant's then-existing state of mind, emotion, or phy...
CopyCited 38 times | Published | Supreme Court of Florida
...Ritchey was allowed to testify that appellant stated to him that "he was tired of the police hassling him, he had guns, too and intended to kill a pig." Special care was taken to make no mention of this prior arrest to the jury. Ritchey's testimony was permitted by the trial judge pursuant to section 90.803(3), Florida Statutes (1979) Statements of a Person's State of Mind to Prove Subsequent Acts of the Declarant....
...A statement made under circumstances that indicate its lack of trustworthiness. (Emphasis supplied.) Appellant contends that the statement should have been excluded because it was "made under circumstances that indicate its lack of trustworthiness." § 90.803(3)(b)(2), Fla....
...After detailed study of the record we agree with the trial court. Appellant's statement of his intention to kill a police officer contains sufficient probative value to draw the inference that the act was done. It was therefore properly admitted as an exception to the hearsay rule pursuant to section 90.803(3)(a)(2)....
CopyCited 37 times | Published | Supreme Court of Florida | 2000 WL 350558
...these statements fell within one of two recognized exceptions to the hearsay rule and that they were properly admitted as rebuttal evidence. In particular, the State argues that Martin's testimony is admissible under the excited utterance exception, section 90.803(2), Florida Statutes (1997), and the state-of-mind exception, section 90.803(3). Alternatively, the State argues these statements became admissible as rebuttal evidence to impeach statements that Stoll made. As to the State's argument that the statements constituted excited utterances, section 90.803(2) provides for the admission of "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Accordingly, we have previou...
...was not established by the State and where such a finding was not made by the trial court. Similarly, we reject the State's argument that Martin's statement, in whole or in part, was admissible under the state-of-mind exception to the hearsay rule, section 90.803(3)....
...at the trial or hearing, offered in evidence to prove the truth of the matter asserted." §
90.801(1)(c), Fla. Stat. (1997); see Woods,
733 So.2d at 987; cf. Bolin v. State,
736 So.2d 1160, 1167 (Fla.1999) (finding that police reports are hearsay); §
90.803, Fla....
...[5] The two penalty phase issues are: (1) the death sentence imposed upon Stoll was disproportionate as compared to the sentence imposed upon Stewart; and (2) the death sentence was improper because the court's findings regarding aggravating circumstances are in error. [6] Section 90.803, Florida Statutes (1997), provides that the following are not inadmissible as evidence, even though the declarant is available as a witness: (3) THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION. (a) A statement of the declarant...
CopyCited 36 times | Published | Supreme Court of Florida | 2006 WL 240418
...first-degree murder, to life in prison for burglary and robbery, and to fifteen years for attempted robbery. Penalver raises twenty-two issues on appeal: (1) whether the introduction of an out-of-court statement as proof of subsequent conduct under section 90.803(3)(a)(2), Florida Statutes (1999), denied Penalver his right to confrontation, due process, and a fair trial under the Florida and United States Constitutions; (2) whether the trial court erred in admitting irrelevant evidence that Mel...
...ndez as a potential *1127 perpetrator of the crime. Thus, the testimony was relevant to show that Hernandez was not in town when the murders occurred. The trial court allowed Milman's statement into evidence as an exception to the hearsay rule under section 90.803(3) (1999), Florida Statutes, which provides: (3) THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION. (a) A statement of the declarant's then-existing state of mind, emotion, or physical sensation, including a statement of intent,...
...An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant's will. 2. A statement made under circumstances that indicate its lack of trustworthiness. § 90.803(3), Fla. Stat. (1999). A hearsay statement of intent or plan is admissible under section 90.803(3) when offered to "[p]rove or explain acts of subsequent conduct of the declarant." § 90.803(3)(a)(2), Fla....
...nlyn told him that he was going to escape, get a shotgun, and kill the first person he saw with a car. In affirming the trial court's denial of Monlyn's motion to suppress the statement, we said, "This is exactly the kind of evidence contemplated by section
90.803(3)(a)2, Florida Statutes (1995), as satisfying the state of mind exception to explain subsequent conduct." Monlyn,
705 So.2d at 5....
...andez v. State,
863 So.2d 484 (Fla. *1132 4th DCA 2004). Thus, if the statement is offered for the truth of the facts contained in the statement, then the statement is hearsay and must fall within one of the recognized hearsay exceptions outlined in section
90.803 to be admitted into evidence....
CopyCited 34 times | Published | Supreme Court of Florida | 2008 WL 657867
...56,
100 S.Ct. 2531,
65 L.Ed.2d 597 (1980), which is no longer applicable to Confrontation Clause challenges in the wake of Crawford. The Fourth District also held that the trial court's finding that the child victim was unavailable to testify under section
90.803(23), Florida Statutes (2002), did not satisfy the Confrontation Clause requirement of physical unavailability as provided in Crawford....
...he acts in question. Thus, these statements were not admissible in evidence unless they fell within one of the statutory exceptions to the hearsay rule. The trial court found the statements admissible under the child victim hearsay *902 exception in section 90.803(23), Florida Statutes (2007)....
...Section
90.804(1)(d), Florida Statutes (2007), defines unavailability as including a declarant who is unable to be present or testify at the trial because of a "then-existing physical or mental illness or infirmity." [4] This is consistent with the requirement in section
90.803(23) that the court must find that the child's participation in the trial or proceeding "would result in a substantial likelihood of severe emotion or mental harm." Thus, Florida statutes provide that a witness's unavailability can be premised on a mental or emotional infirmity or harm, as well as physical absence....
...The Fourth District noted that the child's testimony at the second discovery deposition demonstrated her understanding that she would have to testify at trial and her readiness to do so. Id. Thus, the Fourth District concluded, the child was not "unavailable" as a witness under section 90.803(23), which requires "a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm." § 90.803(23)(a)(2)(b), Fla....
...case. Based on this expert opinion, the trial court found that there was a substantial likelihood that the child would suffer severe emotional or mental harm if required to participate in the case and thus found her unavailable within the meaning of section 90.803(23)....
...ble due to the substantial likelihood of harm. The Fourth District erred in this regard. Finally, the Fourth District also concluded that the child victim, who was thirteen years old at the time of trial, no longer qualified for unavailability under section 90.803(23)....
...or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s.
90.804(1). §
90.803(23), Fla....
CopyCited 33 times | Published | Florida 1st District Court of Appeal | 1994 WL 525078
...The second issue concerns the exclusion of appellant's testimony with regard to the victim's statements at the time of the incident. Appellant sought admission of these statements under the "then existing state of mind" exception to the hearsay rule. The relevant portion of section 90.803(3), Florida Statutes, provides: The provision of s....
...State,
589 So.2d 245 (Fla. 1991), cert. denied, ___ U.S. ___,
112 S.Ct. 1773,
118 L.Ed.2d 432 (1992) (testimony of victim's sister that victim said she had a yeast infection and was abstaining from sex for a week or two prior to her murder properly admitted under section
90.803(3), Florida Statutes, to prove victim's state of mind and her conduct with respect to intercourse prior to her murder); Peede v....
...ication of guilt would have been withheld. [3] In this vein, we recognize that it is impractical for an attorney to interject constant objections to repeated improprieties by opposing counsel. See Wilson v. State,
294 So.2d 327, 329 (Fla. 1974). [4] Section
90.803(1), Florida Statutes, defines a spontaneous statement as: A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness. [5] Section
90.803(2), Florida Statutes, defines an excited utterance as: A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition....
CopyCited 33 times | Published | Supreme Court of Florida | 1995 WL 752298
...IDA STATUTES, CONSTITUTE SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION WHEN THE ONLY OTHER EVIDENCE OF THE DEFENDANT'S GUILT IS OTHER PRIOR INCONSISTENT STATEMENTS MADE BY THE VICTIM, WHICH HAVE BEEN FOUND TO BE RELIABLE AND ARE ADMISSIBLE PURSUANT TO SECTION 90.803(23)(a), FLORIDA STATUTES? Id....
...[At trial, she identified another man as the person who forced her to have sex.] Thereupon, over defense counsel's objection, pursuant to section
90.801(2)(a), the trial court allowed the state to read to the jury the victim's deposition testimony. Also, after making extensive findings of reliability, pursuant to section
90.803(23)(a), the trial judge allowed the state to elicit from the sister and sister-in-law the accusations the victim had related to them concerning Willie Green and he *758 allowed into evidence the videotaped interview....
...itself, to sustain a conviction. We reach this question because, even though we find that the victim's deposition testimony was inadmissible, the victim made other prior inconsistent statements in this case that could be admitted at the trial under section 90.803(23), Florida Statutes (1989), the hearsay exception for statements made by child-abuse victims....
...sufficient as a matter of law to prove guilt beyond a reasonable doubt. We reiterate that conclusion today, finding that our holding in Moore II applies regardless of whether the prior inconsistent statement is admitted under section
90.801(2)(a) or section
90.803(23). As the Second District Court of Appeal concluded in Jaggers v. State,
536 So.2d 321, 325 (Fla. 2d DCA 1988): [W]e do not find the intent of section
90.803(23) is to allow the state to breathe substantive reliability into ......
...prior inconsistent statements when they are otherwise admissible only to impeach those prosecuting victim witnesses whose testimony is introduced by the state at trial.... The rule that prior inconsistent statements may not be used substantively as the sole evidence to convict ( see Moore ), applies to Section 90.803(23) evidence as well....
...To convict Green based solely on the prior inconsistent statements of the victim would indeed create too great a risk of "convicting an innocent accused," especially when we consider the immense potential for manipulation of a retarded child. This does not mean that inconsistent statements admitted under section 90.803(23) can never be used as substantive evidence when other proper corroborating evidence is admitted....
CopyCited 31 times | Published | Florida 4th District Court of Appeal | 2000 Fla. App. LEXIS 11699
...We therefore reverse the order of the trial court adjudicating M.H. as a dependent as to appellant. Reversed. STEVENSON, J., and OFTEDAL, RICHARD L., Associate Judge, concur. NOTES [1] If A.W., a six year old, was afraid to testify, the Department could have tried to use section 90.803(23), Florida Statutes (1997), to admit her statements to investigators....
CopyCited 31 times | Published | Supreme Court of Florida | 1991 WL 201666
...the murder because of the infection. First, assuming the testimony that the sisters had discussed the yeast infection and Herdmann would not have had intercourse due to the infection contained hearsay statements, this testimony was admissible under section 90.803(3), Florida Statutes (1987), as a then existing mental, emotional, or physical condition....
...a statement of her "then existing state of mind, emotion, or physical sensation, including a statement of intent, ... or bodily health" offered to prove both Herdmann's state of mind and her conduct regarding sexual intercourse prior to her murder. § 90.803(3)....
CopyCited 29 times | Published | Supreme Court of Florida | 1999 WL 731664
...Dunlevy, Assistant Attorney General, Tampa, Florida, for respondent. PARIENTE, J. We have for review Conner v. State,
709 So.2d 170 (Fla. 2d DCA 1998), which expressly declares constitutional the hearsay exception for elderly persons or disabled adults, section
90.803(24), Florida Statutes (1995)....
...Ford's testimony pursuant to Florida Rule of Criminal Procedure 3.190(j) prior to his death. Before trial, however, the State provided Conner with notice that it intended to introduce as evidence the hearsay statements Mr. Ford made to the *953 police pursuant to section 90.803(24), [1] pertaining to hearsay statements of elderly adults....
...*954 The parties stipulated that this issue was dispositive as to the armed kidnaping and armed robbery counts. [3] On appeal, the Second District noted that the hearsay exception for elderly adults closely tracked the language of the hearsay exception for child victims of abuse or neglect, section 90.803(23), Florida Statutes (1995)....
...The district court stated that it could not rule on the constitutionality of the hearsay exception as applied, because the trial court had yet made full findings concerning the admissibility of the hearsay. Id. at 172. CONFRONTATION CLAUSE ANALYSIS The issue in this case is whether subsection 90.803(24) violates the defendant's constitutional right of confrontation....
...Thus, the newly enacted elderly hearsay statute is the only basis for admissibility of the victim's hearsay statement. The elderly hearsay exception is not firmly rooted because the Legislature enacted the exception in 1995. See ch. 95-158, § 1, at 1588-89, Laws of Fla. (codified at § 90.803(24)). In addition, no other state has a similar exception. [6] Therefore, hearsay admitted under section 90.803(24) is "presumptively unreliable." Wright, 497 U.S....
...our analysis of the child hearsay statute that we have upheld against a Confrontation Clause challenge. See Townsend,
635 So.2d at 956-58; Perez,
536 So.2d at 209. In Townsend, this Court upheld the constitutionality of the child hearsay exception, section
90.803(23), in the context of a prosecution for sexual battery on the defendant's two-year old daughter....
...The State and defendant stipulated that the child was incompetent to testify due to her age [7] so that, but for the hearsay exception, the child's statements would have been excluded. We found that, as applied to child victims of abuse "with a physical, mental, emotional, or developmental age of 11 or less," section 90.803(23)(a), the child hearsay exception was constitutional as long as trial courts found, before admitting statements under this exception, that particularized guarantees of trustworthiness ensured the reliability of the statements....
...d physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate. § 90.803(23)(a)(1)....
...elderly person hearsay exception is much broader than the child hearsay exception. There are some very significant differences between these exceptions that are critical to our analysis. The most obvious difference between the hearsay exceptions in section 90.803(23) and (24) is that the exceptions apply to different victim declarants. While the hearsay exception for child declarants applies only to statements made by children "with a physical, mental, emotional, or developmental age of 11 or less," section 90.803(23)(a), the hearsay exception for elderly adults applies to a much broader class of adult declarants....
..." under this definition. Another critical difference is the scope of the testimony admissible under the hearsay exceptions. While the child hearsay exception is limited to statements describing acts of child abuse, child neglect or sexual abuse, see section 90.803(23)(a), the hearsay statements of the elderly adult declarants may describe "any act of abuse or neglect, any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act," committed against them. § 90.803(24)(a)....
...n or disabled adult, the nature and duration of the abuse or offense, the relationship of the victim to the offender, the reliability of the assertion, the reliability of the elderly person or disabled adult, and any other factor deemed appropriate. § 90.803(24)(a)1. However, unlike the child hearsay context, these factors do not guarantee the reliability of a statement when applied to an elderly adult. In addition to listing certain statutory factors to be considered when assessing reliability, section 90.803(24) states that the court can consider "any other factor deemed appropriate." In the child hearsay context, we formulated a permissive list of additional factors that would assist the courts in determining the reliability of child hearsay statements....
...hab. Servs. v. M.B.,
701 So.2d 1155, 1158 n. 4 (Fla.1997) (citations omitted) (quoting Judy Yun, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745, 1751 (1983)). [9] In contrast to the child abuse context, section
90.803(24) broadly applies to statements describing a wide range of crimes not necessarily unique to adults over the *960 age of sixty....
...[10] Because the hearsay exception for elderly adults neither ensures the reliability of the hearsay statements admitted at trial, nor in its broadly worded form is supported by the competing policy interests present in the child abuse context, we conclude that section 90.803(24) is facially violative of the defendant's constitutional right to confrontation....
...e statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement. (c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection. § 90.803(24), Fla.Stat....
...ability of the person to provide adequately for the person's own care or protection is impaired. §
825.101(5)-(6), Fla.Stat. (1995) (emphasis supplied). These definitions are now found in sections
825.101(4) and (5), Florida Statutes (1997). Since section
90.803(24)(c) requires the trial court to make specific findings of fact as to the basis of its ruling, the trial court must find that the declarant qualifies as an "elderly person" under section
825.101 before admitting the hearsay statement. [3] The State did not stipulate that the constitutionality of the hearsay exception was dispositive as to the armed burglary count. Thus, that conviction is not affected by this decision. [4] Section
90.803(23), Florida Statutes (1995), provides: (23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM. (a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an...
...pressing himself or herself concerning the matter in such a manner as to be understood, either directly or through interpretation by one who can understand him or her. (2) Incapable of understanding the duty of a witness to tell the truth. [8] Under section 90.803(23), a child declarant will be considered unavailable to testify if the trial court finds that "the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm." § 90.803(23)(1)2.b. The elderly hearsay exception includes an even broader unavailability requirement, including a finding that testimony would result in "severe emotional, mental or physical harm. " § 90.803(24)(a)2.b....
CopyCited 29 times | Published | Supreme Court of Florida | 2002 WL 31319392
...A police report or criminal arrest affidavit is not admissible into evidence as a public record exception to the hearsay rule because that exception expressly excludes "in criminal cases matters observed by a police officer or other law enforcement personnel." § 90.803(8), Fla....
...State,
642 So.2d 636, 639 (Fla. 2d DCA 1994)). In addition, and unlike the information in the police report which petitioner seeks to rely on, the jail records relied upon in Mancino clearly fall under the public records exception to the hearsay rule. See §
90.803(8), Fla....
...credit of five years for time served for each sentence), and five years for the failure to appear conviction, all to run concurrently with the habitual felony offender sentences received in this case. [2] See §
775.084(1)(b), Fla. Stat. (1989). [3] Section
90.803(8), Florida Statutes (1999), states: PUBLIC RECORDS AND REPORTS....
CopyCited 29 times | Published | Supreme Court of Florida | 1996 WL 727134
...Taylor,
557 So.2d at 144. The court below reached a contrary conclusion. FACTS Petitioner, James Heuss, was charged with the sexual battery of three female children. During trial, the State wished to introduce several hearsay statements made by the children pursuant to section
90.803(23), Florida Statutes (1989), the child-victim hearsay exception....
CopyCited 28 times | Published | Florida 1st District Court of Appeal | 1991 WL 133574
...A pivotal point in this appeal is appellant's contention that the trial court erred in permitting Dr. James Penrod to testify that T.F. identified appellant as her sexual abuser. Such testimony, argues appellant, is inadmissible hearsay in that the child's ascription of fault and identity are not, as required by Section 90.803(4) of the Florida Evidence Code, reasonably pertinent to diagnosis or treatment of the condition she presented when examined by the doctor....
...he Florida rule should be construed in accordance with federal decisions interpreting the federal rule. See Moore v. State,
452 So.2d 559 (Fla. 1984). See also C. Ehrhardt, Florida Evidence, § 803, at 467 (2d Ed. 1984) ("the exceptions contained in Section
90.803 are similar to those enumerated in Federal Rule of Evidence 803")....
...ation, Section
90.801(2)(b), Florida Statutes (1985). I disagree, however, with Judge Miner's alternative analysis on that issue, that such statements nonetheless properly fall within the medical diagnosis or treatment exception to the hearsay rule, Section
90.803(4), Florida Statutes (1985)....
...rsay rule. See Torres-Arboledo v. State,
524 So.2d 403, 407 (Fla.) (statement made by victim of gunshot wound to physician while being attended in the emergency room, recounting that black men had tried to steal his medallion, was inadmissible under section
90.803(4), because it was not reasonably pertinent to medical treatment), cert....
..."purpose other than to find physical evidence corroborating the allegations of abuse."); Lazarowicz v. State,
561 So.2d 392, 394 (Fla. 3d DCA 1990) (statement made by victim of sexual abuse to nurse during examination was not admissible pursuant to section
90.803(4), because there was no showing that the statement was made, or that the victim knew the statement was being made, for the purpose of medical treatment); Bradley v. State,
546 So.2d 445, 447 (Fla. 1st DCA 1989) (on rehearing) (statement made by a fourteen-year-old victim, while being tested for pregnancy, to a clinic staff member that she had been raped was not admissible under section
90.803(4), because it was "not `reasonably pertinent' to the diagnosis of whether she was pregnant;" hence the statement was not deemed sufficiently trustworthy to fall within the hearsay exception); Hanson v....
...Ehrhardt, Florida Evidence § 803, at 467 (2d ed. 1984) (hereafter: Ehrhardt). I am aware that there is a body of federal case law that places a less restrictive interpretation upon Federal Rule of Evidence 803(4), than that which Florida courts place on section 90.803(4), which was patterned after the federal rule....
...n for purposes of medical treatment and those made for investigative purposes in order to detect the identity of the individual responsible for the abusive injury. If hearsay statements are offered in evidence for purposes of medical treatment under section 90.803(4), the burden is upon the proponent to affirmatively establish on the record that such statements were in fact necessarily related to treatment as a predicate to admissibility....
...482 (footnotes omitted). It is not enough, therefore, for the trial court, or an appellate court, to infer or speculate from an otherwise void record that such information appears to be reasonably necessary to medical treatment within the meaning of section 90.803(4)....
...This is particularly true in situations in which information is being obtained in compliance with the statutory requirement to report or investigate child sexual abuse, because the purpose of the hearsay answer to the investigating doctor's question does not fit within the rationale for section 90.803(4)....
...No doubt the issue of whether the victim may have been sexually abused would be pertinent to a treating doctor's diagnosis and treatment, but the assessment of fault and identification of the person who assaulted the child was not shown to be necessary to her medical treatment, and thus was inadmissible under section 90.803(4)....
...so it was thus admitted for all purposes. However, Judge Miner's opinion errs in alternatively assuming that, even if Dr. Penrod's testimony were hearsay, it was nevertheless admissible under the medical diagnosis and treatment exception embodied in section 90.803(4) of the Florida Evidence Code....
...Goslin) innocuously inquired of the child, "What's happening with you?" and T.F. responded spontaneously, "I'm going to court next week to say that Brenda did it." We note that T.F. was then residing with appellant's parents and had been living with them since shortly after her first interview with Dr. Goslin. [8] Section 90.803(4), Florida Statutes (1989), provides: "Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible f...
CopyCited 28 times | Published | Supreme Court of Florida | 2002 WL 31600017
...Second, Marquard contends that he was denied a full evidentiary hearing when the trial judge failed to take judicial notice of witness Harrison's prior testimony from the codefendant's original trial proceeding. Marquard posits that this would be permissible under sections
90.803(22) and
90.804(2)(a) of Florida Statutes (1999). We disagree. Section
90.803(22) provides: [T]he following are not inadmissible as evidence, even though the declarant is available as a witness: .......
...if the party against whom the testimony is now offered... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination; provided, however, the court finds that the testimony is not inadmissible pursuant to s.
90.402 or s.
90.403. §
90.803(22), Fla....
CopyCited 28 times | Published | Supreme Court of Florida | 2008 WL 657832
...her engaging in various sexual activities, that the voice on the videotape was Blanton's, and that she was eleven years old when all of this occurred. A hearing was held on the State's motion to introduce the child's recorded statements pursuant to section 90.803(23), Florida Statutes (2007), the child victim hearsay exception....
...ted the acts in question. Thus, these statements were not admissible in evidence unless they fell within one of the statutory exceptions to the hearsay rule. The trial court found the statements admissible under the child victim hearsay exception in section 90.803(23), Florida Statutes (2003)....
...or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s.
90.804(1). §
90.803(23), Fla....
CopyCited 28 times | Published | Florida 1st District Court of Appeal | 1988 WL 55782
...The issues raised in this appeal are (1) whether the trial court erred in determining that the child witness was competent to testify and in admitting her videotaped deposition into evidence, and (2) whether the trial court erred in admitting the child's out-of-court statements pursuant to section 90.803(23), Florida Statutes (1985)....
...er Rules 803(1)-(23) and 804(b)(1)-(4)." M.H. Graham, Indicia of Reliability and Face to Face Confrontation: Emerging Issues in Child Sexual Abuse Prosecutions, 40 U.Miami L.Rev. 19, 29 (1985). Florida's special child sexual abuse hearsay exception, section 90.803(23), Florida Statutes (1985), provides: (23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM OF SEXUAL ABUSE OR SEXUAL OFFENSE AGAINST A CHILD....
...which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement. (c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection. In enacting section 90.803(23), "the Florida Legislature implicitly recognized that hearsay evidence is not inherently trustworthy, and that the admissibility of such statements in child sexual abuse cases, if in fact untrustworthy and ultimately believed by a j...
...m. The counselor was permitted to testify, over objection, that the child told her a man had touched her on her private parts. The court found that since neither the trial court nor the prosecutor complied with the procedural safeguards set forth in section 90.803(23), the testimony of the counselor was not admissible under the hearsay exception....
...The issue in Distefano is somewhat analogous to the second issue in this case. Distefano argued the trial court erred in admitting the child's out of court statements concerning the sexual encounter because the state failed to comply with the notice requirement of section 90.803(23)....
...2531, 2538-39,
65 L.Ed.2d 597 (1980). Therefore, we are particularly troubled by the quality of the evidence offered in support of the conviction in this case. In Glendening v. State,
503 So.2d 335, 340 (Fla. 2d DCA 1987), the Second District held that "for purposes of section
90.803(23)(a)2.a. the introduction of [the child's] video tape was equivalent to her having personally testified." Thus, in Glendening the unavailability criterion for admissibility of the child's hearsay statements was considered inapplicable. See §
90.803(23)(a)2.b., Fla....
...The Second District ruled that it did not need to reach the question whether the trial court erred in finding the child competent to testify, observing, however, that some jurisdictions have held that the child's competency as a witness "is not the criterion for the introduction of hearsay statements under section
90.803(23)." Glendening,
503 So.2d at 340....
...With respect to the admission of the child's hearsay statements, we do not reject the possibility that, in appropriate circumstances, hearsay would be admissible though the declarant was found incompetent. In the instant case, however, the hearsay was clearly inadmissible due to the trial court's failure to comply with the section 90.803(23) procedural safeguards....
...On remand, the trial court is directed to determine the child's competency as a witness in accordance with the statutory criteria, as a predicate to admission of the child's testimony. In addition, prior to admission of the child's out-of-court statements, the trial court is directed to comply with the section 90.803(23) procedural safeguards....
CopyCited 26 times | Published | Supreme Court of Florida | 1994 WL 570629
...l via videotaped testimony. §
92.53, Fla. Stat. (1993). In addition, the prior statements of child victims of abuse or sexual misconduct may be introduced at the trial under certain circumstances, and videotapes are often employed for this purpose. §
90.803(23), Fla....
...Furthermore, unlike testimony in open court or even deposition testimony, the interviews are conducted on an ex parte basis without the right of cross-examination. Thus, we hold that videotaped out-of-court interviews with child victims introduced into evidence under section 90.803(23) shall not be allowed into the jury room during deliberations....
CopyCited 26 times | Published | Florida 2nd District Court of Appeal | 2007 WL 188417
...e statute" is insufficient. Cf. Hopkins v. State,
632 So.2d 1372, 1377 (Fla.1994) (construing similar requirement for specific findings of fact, on the record, prior to the admission of hearsay statements by child victims of abuse in accordance with section
90.803(23), Florida Statutes (1989))....
...[7] The prosecutor responded that the statements made to Ms. Shulman were nontestimonial under Crawford. The prosecutor argued further that the statements were admissible in evidence because they were made for the purposes of medical diagnosis and treatment. See § 90.803(4), Fla....
...We reject this argument on two grounds. First, the State makes this argument for the first time on appeal. At trial, the State's response to the defense objection was limited to the argument that the challenged statements were nontestimonial and that they were properly admissible under section 90.803(4)....
CopyCited 25 times | Published | Florida 1st District Court of Appeal
...shed by the DMV, which is purported to represent a combination of Florida law and official DOT policy. The handbook may yet be admissible, if it falls into one of the enumerated exceptions to the hearsay rule. These exceptions, which are embodied in Section 90.803, Florida Statutes, state in relevant part: *1221 90.803 Hearsay exceptions; availability of declarant immaterial....
...subject. Pasco County School Board v. Florida Public Employees Relations Commission,
353 So.2d 108, 116 (Fla. 1st DCA 1977); see also Hu v. Crockett,
426 So.2d 1275, 1278 (Fla. 1st DCA 1983); Hall v. Oakley,
409 So.2d 93, 97 (Fla. 1st DCA 1982). [6] Section
90.803(8), Florida Statutes, is for all purposes the same as Federal Evidence Rule 803(8), except that the federal rule adds a subsection not relevant to the case at bar....
...However, the federal and Florida evidence rules allow the document into evidence only if (1) it sets forth the activities of an office or agency, or (2) it relates to "matters observed pursuant to [a] duty imposed by law as to matters which there was a duty to report." § 90.803(8), Fla....
...tute or duly promulgated administrative rule imposing a duty on anyone to prepare a driver's handbook. Finding the absence of any duty imposed by law, we must conclude the handbook is inherently untrustworthy and fails to satisfy the requirements of section 90.803(8). We recognize that the public records hearsay exception is derived from the common law, Law Revision Council Note-1976, 6C Florida Statutes Annotated Section 90.803 at 274, and that there are a number of early Florida Supreme Court decisions which specifically hold that a lack of statutory authority imposing a duty is irrelevant to the applicability of the public records hearsay exception....
...Kendrick,
25 Fla. 778,
6 So. 868, 869 (1889); see also Corbett v. Berg,
152 So.2d 196, 197 (Fla. 3d DCA 1963). These cases, however, apply the common law rule which, in our view, has been specifically superseded by the statutory requirement embodied in Section
90.803(8) of a legally imposed duty to report....
...r opinions based on the common law and the code enacted by the legislature convinces us that the rule stated in the older opinions is no longer applicable. Therefore, the handbook, which is hearsay, cannot be held to fall within a hearsay exception. § 90.803, Fla....
CopyCited 24 times | Published | Supreme Court of Florida
...Department of Health & Rehabilitative Services, 21 Fla. L. Weekly D1817,
1996 WL 453438 (Fla. 1st DCA Aug.13, 1996). We accepted jurisdiction to answer the following questions certified to be of great public importance: DOES THE TERM "STATEMENT" IN SECTION
90.803(23), FLORIDA STATUTES, PERMIT THE ADMISSION OF A CHILD VICTIM'S PRIOR UNSWORN STATEMENT WHICH IS INCONSISTENT WITH THE CHILD'S IN-COURT TESTIMONY, IF THE EVIDENCE SUPPORTS A DETERMINATION THAT THE EARLIER UNSWORN STATEMENT MEETS SUFFICIENT SAFEGUARDS OF RELIABILITY? IF SECTION
90.803(23) PERMITS A CHILD VICTIM'S PRIOR INCONSISTENT STATEMENTS TO BE ADMITTED AS SUBSTANTIVE EVIDENCE, IF FOUND TO BE TRUSTWORTHY AND THE RECORD SUPPORTS SUCH A FINDING, IS THE COMBINATION OF SUCH STATEMENTS AND THE CORROBORATING MEDICAL E...
...The trial court also admitted hearsay testimony of several witnesses regarding D.W.'s *1157 initial statements about her sexual abuse and identifying her stepfather as the abuser. In admitting the child's out-of-court statements, and as required by section 90.803(23), Florida Statutes (1995), providing for a child victim hearsay exception, the trial court entered a detailed order with specific findings as to the reliability of the statements....
...court testimony were never admissible as substantive evidence and only admissible for the limited purpose of impeachment. Id. Therefore, the court concluded that "the only rational interpretation that can be given to the term `statement,' as used in section 90.803(23), is that in order for it to be admitted as substantive evidence, it must be consistent with the child's in-court testimony." Id....
...the evidence standard. Id. The court cited State v. Green,
667 So.2d 756 (Fla.1995), in support of its holding. Finally, the court acknowledged a concern about its ruling and certified the above questions for this Court's review. Id. REQUIREMENTS OF SECTION
90.803(23) We first hold that section
90.803(23), Florida Statutes (1995), permits the admission into evidence of certain out-of-court statements of a child crime victim without the necessity that those statements be consistent with the child's trial testimony. Section
90.803(23) provides: The provision of s....
...reliability, and such other particulars as necessary to provide full disclosure of the statement. (c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection. Since the legislature enacted section 90.803(23) in 1985, we have decided various questions of law concerning this important hearsay exception....
...We believe a reasonable analysis of the legislature's intent as discussed above and a plain reading of the statute itself support this conclusion. [9] The statute explicitly provides for admission of a statement once the trial court finds (1) it is reliable, and (2) the child testifies. § 90.803(23)(a) 1., 2....
..."consistency" does not lead to an "unreasonable or ridiculous conclusion." Id. To the contrary, if we judicially imply an in-court testimony consistency requirement, we would be ignoring the major purpose of the act and would render at least part of section 90.803(23) meaningless....
...es, to support a conviction. The rationale for these decisions is not clear. If the rationale is that the out-of-court statement is lacking the necessary reliability as a result of the circumstances in which it was made, the analysis is appropriate. Section 90.803(23) and the defendant's confrontation rights require this analysis....
...of the witness, the reasoning should not be followed. Although a prior statement which is admitted pursuant to section
90.801(2) is not sufficient by itself to support a conviction, the rationale should not be extended to statements admitted under a section
90.803 hearsay exception....
...More importantly, no in-court consistency requirement attaches as the "failure of the witness to repeat the identification in *1162 court does not affect the admissibility of evidence of the prior identification." Id. at 582. The same may be said of the provisions of section 90.803(23)....
...Based on the above analysis, we hold that hearsay statements such as those in this case, even if "inconsistent" with a child's in-court testimony, are admissible as substantive evidence in a dependency hearing once they have satisfied the stringent reliability safeguards established in section 90.803(23) and refined in our prior case law....
...State,
655 So.2d 1118, 1120 (Fla.1995). In Green, we explicitly noted that our prior decisions barring criminal convictions "based solely on the prior inconsistent statements of the victim... [do] not mean that inconsistent statements admitted under section
90.803(23) can never be used as substantive evidence when other proper corroborating evidence is admitted." Green,
667 So.2d at 761....
...statement is proffered under the statute. [7] Beyond several enumerated indicia of reliability, the trial court may consider "any other factor deemed appropriate" to assist it in evaluating the statements for "sufficient safeguards of reliability." § 90.803(23)(a)1., Fla....
...the statement. In determining reliability the court should not consider other evidence which corroborates the truth of the child's statement. Before statements of a child to an expert evaluating the child for sexual abuse are admitted at trial under section 90.803(23), the supreme court has strongly suggested that the interview be video-taped to ensure the trustworthiness of the communication and that the expert did not lead the child during the interview....
...person made after perceiving the person. Therefore, for non-hearsay, the issue of consistency between out-of-court statements and trial testimony is specifically addressed in paragraphs (2)(a) and (b) of the statute. There is no similar language in section 90.803(23)....
CopyCited 23 times | Published | Florida 5th District Court of Appeal | 2004 WL 2363583
...capital sexual battery and one count of lewd and lascivious molestation. D.H. refused to repeat to anyone else what she had told her parents about the incident. She was therefore found to be "unavailable" as a witness for trial within the meaning of section 90.803(23), Florida Statutes, and no attempt was made to call her to testify....
...2531,
65 L.Ed.2d 597 (1980), in which the high court had held that the confrontation clause does not bar admission of an unavailable witness's statement against a criminal defendant if the statement bears "adequate indicia of reliability."
124 S.Ct. at 1374. The Florida Supreme Court relied on Ohio v. Roberts in finding that section
90.803(23), Florida Statutes, met the requirements of the confrontation clause in cases in which the victim did not testify at trial....
...ase, the individual states have "flexibility in their development of hearsay law" and can even exempt such statements from confrontation clause scrutiny altogether.
124 S.Ct. at 1374. In this state, the admission of these statements is controlled by section
90.803(23), Florida Statutes....
CopyCited 23 times | Published | Florida 5th District Court of Appeal | 2004 WL 1799760
...ON MOTION FOR REHEARING We grant rehearing to address one point, discussed in footnote 4, and supplant our prior opinion. In all other respects the Motion for Rehearing is denied. In this capital sexual battery case, Appellant raises two issues: First, whether the child victim hearsay exception set forth in section 90.803(23), Florida Statutes (2003), applies if the child victim was age 11 or less at the time she gave a statement to police, but over age 11 at the time of the hearing on the motion to admit the statement....
...hotographs and video all depicted her, that Appellant was also depicted in several of them, and that it was Appellant's voice on the audio portion of the video. By the time of the hearing on the State's motion to introduce the statements pursuant to section 90.803(23), Florida Statutes, however, the victim was 13 years old....
...nt made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing ... child abuse or neglect,[or] any act of sexual abuse against a child ... is admissible in evidence in any civil or criminal proceeding.... § 90.803(23)(a), Fla....
CopyCited 23 times | Published | Florida 1st District Court of Appeal | 1999 WL 594179
...Even if the counts had been severed and the State elected to prosecute the sexual battery first, Wright's admission as to Count One that he had engaged in sexual activity with S.J. would have been relevant and admissible at a subsequent trial on the charge in Count Two. § 90.803(18)(a), Fla....
CopyCited 23 times | Published | Supreme Court of Florida | 2007 WL 1215130
...these issues." Id. [2] ANALYSIS The instant case is similar to Beber v. State,
887 So.2d 1248 (Fla.2004), because like Beber this case involves the admission of pretrial statements as substantive evidence under the child victim hearsay exception in section
90.803(23), Florida Statutes (2001), after the child recanted the pretrial statements during her in-trial testimony. In Beber, the Fifth District concluded that an out-of-court videotaped statement by the child victim, which had been admitted pursuant to section
90.803(23), was sufficient to sustain Beber's conviction of capital sexual battery for fellatio, even though there was no corroborating evidence other than the child's in-court testimony that Beber perpetrated other sexual crimes on him, [3] and even though the child contradicted his videotaped statement in court....
...would fail as sufficient corroboration of Mr. Baugh's guilt." Id. at 766. The Second District noted problems with each piece of the alleged corroborating evidence. C.P.'s "spontaneous statement" to her mother was part of the substantive evidence admitted under section 90.803(23) and "putting another name on it" did not make it any more corroborative of the event....
...at 761. In Beber,
887 So.2d at 1251, we applied Green and again held that out-of-court statements that have been recanted at trial cannot, standing alone, support a criminal conviction. We acknowledged that "[w]hile inconsistent statements admitted under section
90.803(23) can be used as substantive evidence when other proper corroborating evidence is admitted, in Green's case we concluded that the testimony of the examining physician was `simply not adequate to supply that corroboration.'" Id....
...he detective. [7] Florida recognizes a hearsay exception for statements by a child victim regarding sexual abuse, provided that "the circumstances of the statement provide sufficient safeguards of reliability" and certain other requirements are met. § 90.803(23)(a)(1)., Fla....
CopyCited 21 times | Published | Florida 4th District Court of Appeal | 11 Fla. L. Weekly 321
...o indicate where the child learned the language, assuming, arguendo, it would otherwise be admissible for such purpose. The state further argues that the statement was admissible under the excited utterance exception to the hearsay rule contained in section 90.803(2), Florida Statutes....
...Appellant also challenges, as hearsay, the admission of statements the child made to a counselor at the Sexual Assault Treatment Center in Fort Lauderdale. The statements described an act of fellatio with appellant. The state argues that the testimony was properly admitted as a hearsay exception under section 90.803(4), Florida Statutes, which provides: (4) Statements for purposes of medical diagnosis or treatment....
CopyCited 21 times | Published | Supreme Court of Florida | 1994 WL 37919
...nion. Confusion surrounds the issue of medical and hospital records, and their admissibility under the business record hearsay exception. [2] Several district courts have held that medical records are an exception to the hearsay rule and fall within section 90.803(6)(a), Florida Statutes (1991)....
...of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness. § 90.803(6)(a), Fla....
CopyCited 20 times | Published | Supreme Court of Florida | 2001 WL 123869
...[10] Cope was identified in the police reports of the Jacksonville Sheriff's Office. [11] The State asserts that police reports regarding criminal matters are traditionally excluded from the public records hearsay exception and thus are not admissible as substantive evidence in criminal trials. See §
90.803(8), Fla. State. (1997); see, e.g., Hendrieth v. State,
483 So.2d 768, 769 (Fla. 1st DCA 1986) (police report not admissible against defendant under section
90.803(8))....
CopyCited 19 times | Published | Florida 3rd District Court of Appeal | 1992 WL 367218
...that Starks stated that she was beaten with a shoe. The defendant argues that the fact that she was beaten with a shoe was not relevant for diagnosis and treatment and is, therefore, inadmissible as hearsay. We disagree. These statements fall under section 90.803(4), Florida Statutes (1989), as statements made for the purpose of medical diagnosis or treatment....
...901,
109 S.Ct. 250,
102 L.Ed.2d 239 (1988). This information was pertinent to the treatment of her wounds. Therefore, the trial court correctly exercised its discretion in allowing the testimony as to the defendant's use of a shoe as a weapon pursuant to section
90.803(4), Florida Statutes (1989)....
CopyCited 18 times | Published | Florida 3rd District Court of Appeal | 1990 WL 58256
...tatements. See State v. Palmore,
510 So.2d 1152 (Fla. 3d DCA 1987) (evidence inadmissible for one purpose may be admissible for another purpose). The statements made to her sister and a friend were admitted to establish Jennifer's state of mind. See §
90.803(3), Fla. Stat. (1985). In the instant sexual battery prosecution, Jennifer's state of mind was not an issue in the case, and therefore her prior consistent statements were not admissible under section
90.803(3)....
...nadmissible. The trial judge allowed the nurse who examined Jennifer after the alleged offense to testify concerning Jennifer's prior consistent statements based upon the prosecutor's proffer that the statements were made during a medical interview. Section 90.803(4), Florida Statutes (1985), does provide an exception to the hearsay rule for statements made for purposes of medical diagnosis or treatment; however, for a statement to be admissible under this exception there must be a showing: (a)...
CopyCited 18 times | Published | Florida 3rd District Court of Appeal
...ind its admission harmless if indeed it were inadmissible. [4] On October 23, 1980, his counsel was disbarred. See The Florida Bar v. Matthews,
389 So.2d 1004 (Fla. 1980). [5] Tresvant was tried in 1977, prior to the effective date, July 1, 1979, of Section
90.803(18), Florida Statutes (1979)....
...gainst whom the statement is offered] during the course, and in furtherance of the conspiracy." Concededly, the Florida Evidence Code applies to criminal proceedings related to crimes committed after its effective date. §
90.103, Fla. Stat. (1979). Section
90.803(18), however, adopted existing Florida law. See Law Revision Council Notes 1976. Florida courts traditionally have viewed a co-conspirator's statement as hearsay, but admissible as an exception to the hearsay rule. This view is now embodied in Section
90.803(18)....
...order of proof to be reversed provided only that ultimately the prosecution furnishes adequate independent proof of the conspiracy. Honchell v. State, supra ; Boyd v. State, supra ; see also Briklod v. State, supra . The statement presently found in Section 90.803(18)(e), Florida Statutes (1979), that "upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member's participation in it must be established by independent evidence, either before the introduct...
CopyCited 18 times | Published | Supreme Court of Florida | 2008 WL 89979
...r and that there was no opportunity for cross-examination because the witness did not testify at trial. Was the Victim's Statement Testimonial under Crawford? The trial court admitted Ruiz's statement under the excited utterance hearsay exception in section 90.803(2), Florida Statutes (2006). Section 90.803(2) authorizes the admission of "[a] statement or excited utterance relating to a startling event or, condition made while the declarant was under the stress of excitement *345 caused by the event or condition," notwithstanding the general prohibition against the admission of hearsay....
CopyCited 17 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 2053, 1986 Fla. App. LEXIS 9863
...he above authorities because the report would not be based entirely on hearsay. [2] Assuming that appellee's reliance upon the business records exception can overcome the failure of the record on appeal to reflect the usual predicate [3] required by Section 90.803(6)(a), the fact remains that the report would still not fall within the exception because the relevant information contained in the report is itself *809 hearsay....
...(1) In agency proceedings for a rule or order: (a) * * * Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. * * [2] Section 90.803(6)(a), Florida Statutes (1983) provides: (6) Records of regularly conducted business activity....
CopyCited 17 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 1947
...uards written into the statute, and accordingly the counselor's testimony was not admissible under this hearsay exception. The state argues that the statement was admissible nevertheless under the excited utterance exception to the hearsay rule. See § 90.803(2), Fla....
...t to them. Accordingly, we conclude that the testimony of the Child Protection Team counselor was merely cumulative and did not give significant additional weight to the child's testimony. Id. AFFIRMED. WENTWORTH and BARFIELD, JJ., concur. NOTES [1] Section 90.803(23), Florida Statutes (1985), effective July 1, 1985, states as follows: (a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statem...
CopyCited 17 times | Published | Florida 4th District Court of Appeal | 2011 WL 5573941
...t as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P.,
760 So.2d 126, 130 (Fla.2000). We find that Orsini's affidavit constituted inadmissible hearsay and, as such, could not support LaSalle's motion for summary judgment. Pursuant to section
90.803(6)(a), Florida Statutes, documentary evidence may be admitted into evidence as business records if the proponent of the evidence demonstrates the following through a records custodian or other qualified person: (1) the record was made...
...t replicated the numbers derived from the company's computer system. Orsini had no knowledge of how his own company's data was produced, and he was not competent to authenticate that data. Accordingly, Orsini's statements could not be admitted under section 90.803(6)(a), and the affidavit of indebtedness constituted inadmissible hearsay....
...The law is also clear there is no per se rule precluding the admission of computerized business records acquired from a prior loan servicer. [3] We stress that this case stands alone and its outcome could very well have been different had the affiant's testimony demonstrated that he knew the simple basics as set forth in section
90.803(6)(a) and Yisrael,
993 So.2d at 956....
CopyCited 17 times | Published | Florida 2nd District Court of Appeal | 1989 WL 55294
...ny. *660 State v. Hall,
509 So.2d 1093, 1097 (Fla. 1987). Finally, Mr. Stone argues that the trial court erred in admitting the hearsay statements of the victim to her mother and to her friend without making the specific findings of fact required by section
90.803(23), Florida Statutes (1987)....
...This hearsay exception for certain statements of child victims in sexual offense cases requires the trial court to conduct a hearing outside the presence of the jury to determine whether the "time, content, and circumstances of the statement provide sufficient safeguards of reliability." § 90.803(23)(a)(1), Fla. Stat. (1987). The rule also requires the trial court to make specific findings of fact on the record as to the basis for its ruling. § 90.803(23)(c), Fla....
CopyCited 17 times | Published | Florida 3rd District Court of Appeal | 2008 WL 723786
...The defendant argues that the records custodians' testimony regarding how far a hypothetical caller would be from the phone tower was testimony beyond their expertise and personal knowledge, and, therefore, should not have been admitted as a business records exception to the hearsay rule. See § 90.803(6), Fla. Stat. (2007). The State responds that the records were created in the regular course of business activity upon receiving or sending a call. Thus, they were admissible under subsection 90.803(6)....
CopyCited 17 times | Published | Supreme Court of Florida | 1993 WL 322935
...[2] She responded that Johnny Jones had done so. Dr. Seibel's testimony as to her answer was admitted into evidence over a hearsay objection based on the State's argument that the child's statement was made in connection with a physician's treatment. § 90.803(4), Fla....
...d occurred and, if so, the identity of the individual responsible for it." Id. [4] The court certified conflict with Flanagan. [5] The issues presented are whether statements to medical personnel by victims of child sexual abuse are admissible under section 90.803(4), the Florida Evidence Code's medical diagnosis and treatment exception to the rule against hearsay, [6] and whether statements to physicians working for child protection teams should be treated differently from statements to other physicians because of any investigatory role played by the teams....
...ms of abuse. Unfortunately, not every statement by a child that he or she has been abused is reliable, and the Florida Legislature has recognized the vital interests that must be balanced in child abuse prosecutions. In 1985, the Legislature enacted section 90.803(23), a special hearsay exception that was adopted in an effort to comprehensively address the issues relating to a child's out-of-court statements of abuse....
...e statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement. (c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection. § 90.803(23), Fla....
...aid of their assailants? ... . [F]rom the moment a child says something disquieting to a parent, all involved parents, investigators, psychologists, lawyers, judges need to proceed with an unusual degree of sophistication and caution. Clearly, section 90.803(23) is the Florida Legislature's response to the need to establish special protections for child victims in the judicial system. The legislative history of section 90.803(23) shows that initial drafts of the bills in both houses included not only a new hearsay exception, but also expansions of the medical diagnosis and treatment exception and the excited utterance hearsay exception in ways that would accommodate statements of child victims of abuse. The proposed expansions of the existing hearsay exceptions were removed after discussion, [8] and lawmakers chose instead the more balanced new hearsay exception codified in section *826 90.803(23)....
...notice of the intent to use the statements, the Legislature sought to strike a balance between the need to consider child hearsay statements in judicial proceedings and the rights of the accused. [10] This Court has adopted the procedural aspects of section
90.803(23) as rules of court, In re Amendment of Florida Evidence Code,
497 So.2d 239 (Fla....
...tution. Perez v. State,
536 So.2d 206, 209 (Fla. 1988), cert. denied,
492 U.S. 923,
109 S.Ct. 3253,
106 L.Ed.2d 599 (1989); Glendening v. State,
536 So.2d 212, 214 (Fla. 1988), cert. denied,
492 U.S. 907,
109 S.Ct. 3219,
106 L.Ed.2d 569 (1989). With section
90.803(23) in place in Florida and frequently applied in the courts, [11] and in light of the legislative history rejecting the expansion of the medical diagnosis and treatment exception, we reject the adoption of Renville into Florida law and instead find that statements such as those at issue here are controlled by section
90.803(23). [12] However, the State's failure to introduce the physicians' statements through section
90.803(23) is not fatal to the State in this case because the statements in question were admissible as prior consistent statements by the child to rebut charges of recent fabrication and improper influence....
...ous year and found that her hymenal ring was not torn and was of normal size, we find that if the exclusion was erroneous, it was harmless. [5] The district court expressed no opinion on whether the challenged hearsay would be admissible pursuant to section
90.803(23), Florida Statutes (1985), which relates to out-of-court statements by child victims of abuse. That section was not addressed because the required pretrial notice and hearing did not take place. Jones,
600 So.2d at 1140 n. 1. [6] Section
90.803(4) states that the following are excepted from the hearsay rule: Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and...
...on Judiciary-Civ., tape recording of proceedings (Apr. 3, 1985) (Florida State Archives) (comments of Professor Ehrhardt). [9] Professor Ehrhardt's comments included the following statement regarding the new hearsay exception, which was ultimately adopted as section 90.803(23): I think that this hearsay exception is much better than the way the bill was originally drafted....
...Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn.L.Rev. 523, 534-37 (1988) (discussing special statutory hearsay exceptions). [11] See 6C Fla. Stat. Ann. 89-95 (Supp. 1993) (listing numerous appellate cases interpreting section 90.803(23))....
CopyCited 17 times | Published | Supreme Court of Florida | 1989 WL 44354
...Edwards,
536 So.2d 288 (Fla. 1st DCA 1988), also conflicts with Romani. We are concerned here with what proof is required to establish a conspiracy so that the hearsay testimony of one member of the conspiracy can be used against another as authorized by section
90.803(18)(e), Florida Statutes (1987)....
...strict court in Romani. There is no counterpart to rule 104(a) in the Florida Evidence Code. To the contrary, the Florida Code provides for a jury instruction that each member's participation in the conspiracy must be proved by independent evidence. § 90.803(18)(e)....
CopyCited 16 times | Published | Florida 4th District Court of Appeal | 1992 WL 16628
...The officer answered affirmatively, though no mention of Cassidy was made in the jury's presence. Cassidy's statements to the officer were properly excluded after a proffer under section
316.066, Florida Statutes (1989). The trial court properly allowed into evidence Cassidy's remarks to Mr. Jana that he was sorry. §
90.803(1)(2), Fla....
CopyCited 16 times | Published | Supreme Court of Florida | 1997 WL 618707
...Court, citing Jones v. State,
440 So.2d 570 (Fla.1983). After review of the record, we find no error in allowing the testimony. Craddock said the statement was made the day before Monlyn escaped. This is exactly the kind of evidence contemplated by section
90.803(3)(a)2, Florida Statutes (1995), as satisfying the state of mind exception to explain subsequent conduct....
...Therefore, we find that no relief is warranted on this issue. Accordingly, we affirm the convictions and the sentence of death. It is so ordered. OVERTON, SHAW, GRIMES, HARDING and WELLS, JJ., concur. ANSTEAD, J., concurs in result only. NOTES [1] The section provides, in relevant part: 90.803 Hearsay exceptions; availability of declarant immaterial....
... (a) A statement of the declarant's then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to: ... 2. Prove or explain acts of subsequent conduct of the declarant. § 90.803(3)(a)2, Fla....
CopyCited 16 times | Published | Florida 3rd District Court of Appeal | 1988 WL 103849
...s inadmissible as hearsay and unproved accuracy. We disagree. Although Detective Dygon's testimony contained translated statements which may be considered hearsay, Chao v. State,
478 So.2d 30 (Fla. 1985), it falls within the exceptions delineated in section
90.803(18)(c), Florida Statutes (1983)....
...versations. See Chao,
478 So.2d at 30 (where defendant's uncle came to police station with defendant and translated defendant's statements in Spanish at officer's request, statement as translated by uncle and testified to by officer admissible under §
90.803(18)(c)); United States v....
...ife. These circumstances fulfill the necessary elements to prove constructive possession. We hold that sufficient evidence supported the jury's verdict. AFFIRMED. NOTES [1] The jury found Arce and Gazo guilty, but acquitted Gomez of all charges. [2] Section 90.803(18)(c), Florida Statutes (1983), provides: Hearsay Exceptions; availability of declarant immaterial....
CopyCited 16 times | Published | Florida 4th District Court of Appeal | 1993 WL 140125
...He was allowed to testify that he relied on Dr. Leone's records in rendering his opinion but the trial court refused their admission. This was error. The parties had stipulated that the records custodian was not necessary. Therefore, the records were admissible as business records. Section 90.803(6), Fla....
CopyCited 16 times | Published | Florida 4th District Court of Appeal | 2000 WL 763548
...Also, an out-of-court statement made by the defendant is admissible if it comes within an exception to the hearsay rule. A defendant's offer of his own out-of-court statement, however, does not fall under the admission exception to the hearsay rule, section 90.803(18), Florida Statutes (1997). This is so because a defendant seeking to introduce his own statement is not offering it "against a party" within the meaning of section 90.803(18)....
...ase cocaine from the defendant and the defendant refused to sell cocaine to them was ruled admissible as either nonhearsay, since it was not offered to prove the truth of the matter asserted, or as a state-of-mind exception to the hearsay rule under section 90.803(3)....
...s conversation with the defendant but to omit the exculpatory portions. Other cases cited by appellant, Alexander v. State,
627 So.2d 35 (Fla. 1st DCA 1993) and Stiles v. State,
672 So.2d 850 (Fla. 4th DCA 1996), pertain to the hearsay exceptions of section
90.803(1)(spontaneous statement) and (2)(excited utterance), Florida Statutes (1999), as justification for admitting a defendant's exculpatory statements....
...e made to police officers at police station after crime because such statements were not part of res gestae and were self-serving). The record is similarly devoid of any evidence that would qualify appellant's statement as an excited utterance under 90.803(2)....
...Our standard of review is abuse of discretion. Alexander v. State,
627 So.2d 35 (Fla. 1st DCA 1993). In this case, there was not a sufficient factual predicate laid upon which we can conclude that the trial court abused its discretion in denying admission of appellant's statement under
90.803(2)....
..., wherein he explained his prior state of mind and conduct surrounding possession of the cocaine. His denial of guilty knowledge of the cocaine cannot be construed as a statement of then-existing state of mind offered for the reasons contemplated by section 90.803(3)....
...penal interest by the guilty. Certainly the majority makes no case against the reliability of such statements. Christopher rejects admissibility under the res gestae exception, which is addressed in our evidence code in two different provisions. [2] Section 90.803(1) allows spontaneous statements into evidence, [3] while section 90.803(2), in turn, allows excited utterances....
...The evidence code lacks an express authorization to exclude evidencewhether labeled as hearsay or otherwisesimply because the proposed evidence is thought to be self-serving. Because all evidence must necessarily serve the litigation positions of the party offering it, I do not think that the section 90.803(1) threshold requirement of trustworthiness for admission can or should logically turn on whether the proposed evidence is self-serving....
...serve that its use serves a purpose in that it saves counsel from identifying two separate statutes by encompassing them in a single locution. Moreover, here the trial judge had no trouble understanding that counsel's use of "res gestae" referred to section 90.803(1) and (2). [3] See § 90.803(1), Fla....
...(1999) ("a spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness."). [4] See § 90.803(2), Fla....
CopyCited 16 times | Published | Florida 4th District Court of Appeal | 1999 WL 415181
...So after you received this you talked to someone else about it? A: That's correct. Q: That had been involved in obtaining them? A: Yes, sir. We agree with Jackson that the state did not establish the necessary basis for the admission of the BellSouth records pursuant to section 90.803(6)(a), Florida Statutes (1997)....
...on
90.104(1)(a) so as to preserve a ruling admitting evidence for appellate review. See Jackson v. State,
456 So.2d 916 (Fla. 1st DCA 1984); Bailey v. State,
358 So.2d 1169 (Fla. 3d DCA 1978). In order to be admissible, a business record pursuant to section
90.803(6)(a) must be shown to have been: 1....
...That it was the regular practice of that business to make such a record. Eunice Polloway was designated by BellSouth as a records custodian to respond to subpoenas. No one asked her any questions to establish that she was a "qualified witness" under section 90.803(6)(a) to testify as to whether the records were made at or near the time of the event recorded or whether the records were made by or from information transmitted by a person with knowledge....
...Dreyfuss,
350 So.2d 520 (Fla. 3d DCA 1977). The general, non-specific objection in this case"lack of foundation"did not alert the state or the trial court as to what portion was missing from the foundation for the admission of business records under section
90.803(6)(a)....
...We recognize that these records were important to the state's case in light of the rather tenuous eye witness identification; however, the failure to make the proper objection which in turn obviated the state's need to cure the defects requires us to affirm the conviction. AFFIRMED. KLEIN and GROSS, JJ., concur. NOTES [1] § 90.803(6)(a), Fla....
CopyCited 16 times | Published | Supreme Court of Florida | 1997 WL 332912
...course of the investigation. The claimant contends that Peacock's testimony, as well as his abuse report, constituted admissions of a party opponent and were properly admitted at trial under the admissions exception to the hearsay rule set forth in section 90.803(18)(d), Florida Statutes (1995). Alternatively, she asserts that the report was admissible under the public records and reports exception contained in section 90.803(8). Section 90.803(18)(d) provides that a statement is admissible as a hearsay exception if the statement is "offered against a party and is ... [a] statement by [the party's] agent or servant concerning a matter which in the scope of the agency or employment thereof, made during the existence of the relationship." Under section 90.803(18)(d), if the employee makes a statement concerning a matter which is connected with a duty within the scope of the employee's agency or employment, the statement is admissible both against the employee and against the employer. If a truck driver, who lacks specific authority to make any statements concerning the way the truck is operated, is involved in an accident, the driver's statements to a bystander regarding the accident are admissible under section 90.803(18)(d) because driving the truck is within the scope of the driver's employment....
...knowledge of damaged stop sign was admissible against employer). On the other hand, we conclude that the hearsay statements of the victim and other patients that Peacock repeated at trial and that are included in his report are not admissible under section 90.803(18)(d)....
...Obviously, statements made by the victim and other patients to Peacock would not be admissible under this exception because those individuals were not employees or agents of HRS. We also conclude that the report was not admissible under the public record and reports exception to the hearsay rule contained in section 90.803(8)....
CopyCited 15 times | Published | Florida 2nd District Court of Appeal
...The major thrust of appellant's argument is that the court erred in admitting out-of-court statements made by Jennifer Glendening, the appellant's 3 1/2 year-old daughter, which implicated appellant. The testimony concerning these statements could only have been admitted under section 90.803(23), Florida Statutes (1985). Appellant not only attacks the constitutionality of the statute and argues its inapplicability to him but also contends that there was no compliance with its requirements. Section 90.803(23) reads as follows: (23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM OF SEXUAL ABUSE OR SEXUAL OFFENSE AGAINST A CHILD....
...iculars as necessary to provide full disclosure of the statement. (c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection. In arguing facial unconstitutionality, appellant contends that section 90.803(23) violates the sixth amendment to the United States Constitution and article I, section 16, of the Florida Constitution, both of which guarantee an accused the right to confront adverse witnesses....
...-of-court statement is sought to be introduced is available for cross-examination at the trial or if found to be unavailable, the statement bears adequate "indicia of reliability." Ohio v. Roberts,
448 U.S. 56,
100 S.Ct. 2531,
65 L.Ed.2d 597 (1980). Section
90.803(23) tracks the requirements of Ohio v....
...The statute is intended to allow the courts to be sensitive to the critical need for a child victim's out-of-court statements, while allowing them to address the various reliability problems posed by the statements, thus protecting the defendant's confrontation rights. 697 P.2d at 842. We hold that section 90.803(23) does not violate the confrontation clauses of the United States and Florida Constitutions. Appellant also argues that since he was charged with a criminal offense occurring between September 1, 1984, and June 24, 1985, the provisions of section 90.803(23) cannot be employed against him because the statute did not become effective until July 1, 1985....
...more burdensome, or deprives the accused of a defense which was available when the offense was committed. Dobbert v. Florida,
432 U.S. 282,
97 S.Ct. 2290,
53 L.Ed.2d 344, rehearing denied,
434 U.S. 882,
98 S.Ct. 246,
54 L.Ed.2d 166 (1977). Clearly, section
90.803(23) did not increase the punishment or deprive appellant of a defense. Moreover, the statute had no effect upon whether appellant committed the crime but simply authorized the *338 introduction of additional evidence to demonstrate his guilt. State v. Ryan . Thus, section
90.803(23) as applied to appellant did not violate article I, section 10, of the United States and Florida Constitutions....
...About a month before trial, appellant made a motion to exclude all hearsay statements made by the child. The state filed a response in which it enumerated the various hearsay statements it intended to introduce. The court ruled that the state's response did not constitute adequate compliance with the notice requirements of section 90.803(23) and permitted the state to file a more detailed response. Thereafter, but more than ten days before trial, the state filed a detailed recitation of the out-of-court statements to be offered at trial in order to comply with the notice mandated by section 90.803(23)(b)....
...The court would feel that the objection has been waived in view of the timing of the objection but in an abundance of caution and in view of the fact that we're all operating under a brand new legislative enactment, which only came into effect this year, amending section 90.803 and allowing, making an exception of children or child victim statements of sexual abuse, which requires the court to have a hearing *339 conducted outside the presence of the jury as to the time, content and circumstances of the statement providing sufficient safeguards of reliability in making the determination....
...w the admission of that testimony as an exception to the hearsay rule under subsection 23. The third witness to testify concerning what Jennifer had told her was Detective Barber. When the appellant objected on grounds of hearsay and of relevance to section 90.803(23), the court listened to a proffer of her testimony outside the presence of the jury....
...Shapiro could testify concerning the child's hearsay statements. Ms. Shapiro was interrogated at length concerning the content of the statements and the circumstances under which they were made. The court excluded certain statements and ruled that others could be admitted since they met the standards of section 90.803(23)....
...In regard to the argument that the requirements of the statute were not followed, appellant first contends that the court failed to make a finding "in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient safeguards of reliability" as required by section 90.803(23)(a)1....
...The court was obviously satisfied with the credibility of the child's statements to Detective Barber because the detective had previously testified outside the presence of the jury. The court cannot be faulted for failing to announce the findings specified by section 90.803(23)(a)1. when appellant was then only arguing relevance and was making no objection to the procedure being followed. Significantly, appellant does not assert that the court did not comply with the procedural aspects of section 90.803(23) with respect to Ms....
...There was ample evidence to support the court's finding that Jennifer's out-of-court *340 statements made to Ms. Shapiro were reliable. Appellant further argues that even if the court substantially complied with the requirements of subparagraph 1. of section 90.803(23)(a), the court made no finding whatsoever with respect to subparagraph 2....
...been physically present at trial. Appellant was in a position to cross-examine her concerning the out-of-court statements because the state's notice for introduction of these statements had already been filed. Therefore, we hold that for purposes of section 90.803(23)(a)2., the introduction of Jennifer's video tape was equivalent to her having personally testified....
...e replayed as part of his own case. In any event, we do not need to reach the question of whether the court correctly concluded that Jennifer was competent to testify because this is not the criterion for the introduction of hearsay statements under section 90.803(23). The mere fact that a child has been deemed incompetent to testify will not render his out-of-court statements concerning child abuse or sexual abuse unreliable for admission under section 90.803(23)....
CopyCited 15 times | Published | Florida 5th District Court of Appeal | 1989 WL 22563
...[2] Because we find the trial proceedings fundamentally infected with such egregious errors as to result in the denial to defendant of his constitutional right to a fair trial, we reverse and remand for a new trial. Although we find that reversal is ultimately required, certain of defendant's arguments are unpersuasive. Section 90.803(23), Florida Statutes (1987), the statute which permits the introduction of hearsay statements of a child victim of sexual abuse, has been held constitutional, Perez v....
...f such statements prior to trial was inadequate. The notice was inadequate because it failed to reveal the circumstances under which the statements were made so that the court could determine that there were sufficient safeguards of reliability. See § 90.803(23)(b), Fla....
...ied. As a condition of admissibility, the statute requires that the court find that the time, content and circumstances of the statement provide sufficient safeguards of reliability and that the child either testifies or is unavailable as a witness. § 90.803(23)(a), Fla. Stat. (1987). The statute also requires that the court make specific findings of fact, on the record, as to the basis for its ruling on the admissibility of these statements, section 90.803(23)(c), Florida Statutes (1987), which the trial court failed to do here....
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 1992 WL 123322
...under the first complaint theory. But the state contends that the error was harmless and that C.M.F.'s hearsay statements were admissible under other provisions of the evidence code, i.e., that C.M.F.'s statements to his mother were admissible under section
90.803(2), the excited utterance exception of the hearsay rule, while his hearsay statements to the officer were admissible under section
90.801(2)(b) to rebut a charge of recent fabrication of C.M.F.'s trial testimony....
...t; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must be made while the person is under the stress of excitement caused by the event. See State v. Jano,
524 So.2d 660, 661 (Fla. 1988); §
90.803(2), Fla....
CopyCited 15 times | Published | Florida 2nd District Court of Appeal | 2004 WL 86180
...We will specifically address two aspects of the challenge made by Cartwright to the constitutionality of section
394.9155(5). First, we will briefly discuss Cartwright's reliance on Conner v. State,
748 So.2d 950, 960 (Fla.1999), which held that the statutory hearsay exception in section
90.803(24), Florida Statutes (1995), for out-of-court statements made by an elderly person describing acts of abuse and violence against the declarant was "facially violative of the defendant's constitutional right to confrontation." Second,...
...Evidence Code,
497 So.2d 239 (Fla.1986); In re Amendment of Fla. Evidence Code,
404 So.2d 743 (Fla. 1981). The court has also specifically declined to approve and adopt an amendment made by the legislature to the Evidence Code. The court withheld its approval from section
90.803(22), Florida Statutes (2000), which allows for the admission of former testimony even when the declarant is available as a witness....
...Those opposed to the adoption of the amendment were concerned that, among other things, "the amendment violate[d] a defendant's constitutional right to confront adverse witnesses." In explaining its decision, the court stated: We agree that this Court should not adopt [section 90.803(22)] to the extent it may be procedural....
...to do otherwise would effectively pass on the constitutionality of the legislation itself. Id. at 341. In State v. Abreu,
837 So.2d 400 (Fla. 2003), the court was presented with a case or controversy involving a challenge to the constitutionality of section
90.803(22), Florida Statutes (1999). The court held "that section
90.803(22) violates the Confrontation Clause of the Sixth Amendment in criminal proceedings to the extent that it allows the prosecutor to use at trial a witness's testimony from a previous judicial proceeding without a showing by the prosecutor that the witness is unavailable." Id....
...The court was not called on to address whether the statutory provision was a procedural measure which the legislature adopted in derogation of the court's authority under article V, section 2(a). But cf. Grabau v. Dep't of Health, Bd. of Psychology,
816 So.2d 701, 709 (Fla. 1st DCA 2002) (holding section
90.803(22) to be unconstitutional on various grounds, including *160 "as an infringement on the authority conferred on the Florida Supreme Court by article V, section 2(a)")....
CopyCited 15 times | Published | Florida 4th District Court of Appeal | 2000 WL 140444
...ort that had been prepared for medical purposes at the hospital where the defendant was treated following a car accident. The records were admitted after the state called the hospital's medical records custodian to lay the necessary foundation under section 90.803(6)(a), Florida Statutes (1995), to establish that the records fell within the business records exception to the hearsay rule....
...At the ensuing sidebar, when asked why the record would not be relevant, the attorney replied, "Because they didn't lay a proper foundation for it to come in yet ... [as to] "[w]ho drew it, all this other stuff." In admitting the records, the trial judge ruled that the state had satisfied foundation requirements of section 90.803(6). At trial, defense counsel did not direct the court's attention to any aspect of section 90.803(6) which had not been met. On appeal, Filan argues that the state did not comply with section 90.803(6), because it failed to offer testimony that the records were made "by, or from information transmitted by, a person with knowledge" of the matter recorded....
...ot be reduced to a guessing game: *1102 The general, non-specific objection in this case"lack of foundation"did not alert the state or the trial court as to what portion was missing from the foundation for the admission of business records under section 90.803(6)(a)....
...Loose, general objections encourage bad lawyering and judging; a trial judge might grant a "no foundation" objection for a reason not even contemplated by the party raising it. Defense counsel's objection at the trial did not direct the trial court's attention to that aspect of the section 90.803(6)(a) foundation which he now claims was deficient on appeal....
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 1992 WL 385386
...*1373 Thus, it is the appellant's duty to demonstrate not only error in improperly admitting evidence, but also prejudice from such admission. Tallahassee Memorial Regional Medical Ctr., Inc. v. Meeks,
560 So.2d 778, 782 (Fla. 1990). The business records exception to the hearsay rule, Section
90.803(6), Florida Statutes (1987), authorizes admission of certain written material made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity an...
...The records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation. Id. If the offering party does not lay the necessary foundation, the evidence is not admissible under section
90.803(6). Id. See also Lowe's of Tallahassee v. Giaimo,
552 So.2d 304, 305 (Fla. 1st DCA 1989) (affidavit failed to make requisite showing to provide proper predicate for admission of doctor's records under section
90.803(6))....
...nt during the regular course of business, his testimony does not establish that the reports were prepared by or made from information transmitted by a person with personal knowledge. Because the defense failed to establish the foundation required by section 90.803(6) for the admission of the records, we hold that the trial court abused its discretion by allowing the two reports into evidence....
CopyCited 15 times | Published | Florida 5th District Court of Appeal | 2002 WL 727008
...hearsay problem. The statute makes the records admissible without authentication "provided the same is otherwise admissible in evidence." These are public records and reports of a public office or agency and are excepted from the hearsay rule under section 90.803(8), Florida Statutes....
CopyCited 14 times | Published | Supreme Court of Florida | 25 Fla. L. Weekly Supp. 909, 2000 Fla. LEXIS 2043, 2000 WL 1587794
...In its report, the Committee recommends that the Court adopt chapters 96-215, section 8, and 96-409, section 2 (both creating section
90.4025, Florida Statutes, Admissibility of paternity determination in certain criminal prosecutions); 96-330, section 2 (changing a statutory reference in section
90.803(8), Florida Statutes, Hearsay exceptions; availability of declarant immaterial; Public Records and Reports); 98-48, section 1 (creating section
90.5015, Florida Statutes, Journalist's privilege); 98-403, section 127 (changing a statuto...
...or deaf person); and 99-225, section 13 (amending section
90.407, Florida Statutes, Subsequent remedial measures), Laws of Florida. However, the Committee recommends against the adoption of chapter 98-2, section 1, Laws of Florida, *340 which amends section
90.803(22), Florida Statutes, (Hearsay exception; availability of declarant immaterial; Former Testimony)....
...1 for comments. A number of comments were filed, the clear majority of which support the Committee's recommendation or opposed the amendment for other reasons. CHAPTER 98-2, SECTION 1, LAWS OF FLORIDA Chapter 98-2, section 1, Laws of Florida, amends section 90.803(22), Florida Statutes, which allows for the admission of former testimony even though the declarant is available as a witness: 90.803 Hearsay exceptions; availability of declarant immaterial.The provision of s....
...ursuant to s.
90.402 or s.
90.403. at a civil trial, when used in a retrial of said trial involving identical parties and the same facts. Ch. 98-2, § 1, Laws of Fla. As noted by the Committee, chapter 98-2, section 1 effectively replaces the narrow section
90.803 hearsay exception for "former testimony," which applies regardless of a declarant's availability to testify, with the much broader section
90.804 "former testimony" exception, [2] which only applies when the declarant is unavailable....
...first enacted, chapter 98-2, section 1 is not based on well established law; nor is it modeled after the Federal Rules of Evidence. See Charles W. Ehrhardt, Florida Evidence § 802.1 (2000 ed.) (stating that hearsay exceptions contained in sections
90.803 and
90.804 generally restate the law that existed prior to the adoption of the Evidence Code)....
CopyCited 14 times | Published | Florida 3rd District Court of Appeal
...1962), cited in McCormick On Evidence 628-29 (E. Cleary ed. 2d ed. 1972). The admissibility of Dinter's deposition statements, then, rests on the singular fact that the statements were made by him. [3] Simply stated, the applicable rule of evidence, Section 90.803, Florida Statutes (1981), provides: "The provision of s....
...While that ruling is not challenged here by Brewer, we note its correctness. Heinz's statements neither constituted admissions by Martha on the theory that the statements concerned a matter within the scope of an agency and were made by him as Martha's agent during the agency relationship, see § 90.803(18)(d), Fla. Stat. (1981); nor were they statements of a co-conspirator during the course of and in furtherance of a conspiracy, see § 90.803(18)(e), Fla....
CopyCited 14 times | Published | Supreme Court of Florida | 2008 WL 1901456
...cted by the FDLE labs. Thus, the primary issue presented here is whether the FDLE lab report is nontestimonial and therefore admissible as a business record under the hearsay rule. Notably, business records are admissible as a hearsay exception. See § 90.803(6), Fla....
...The Fifth District Court of Appeal dealt with the same issue presented here in Rivera v. State,
917 So.2d 210 (Fla. 5th DCA 2005). The defendant in Rivera was convicted of trafficking in cocaine. On appeal he argued that the trial court erred in introducing an FDLE lab report through the records custodian, pursuant to section
90.803(6), Florida Statutes (2002)....
...May 1, 2008), in respect to whether the lab report is testimonial. I would adopt the analysis of the California Supreme Court in People v. Geier, 41 Cal.4th 555, 61 Cal.Rptr.3d 580, 161 P.3d 104 (2007). BELL, J., concurs. NOTES [1] Evidently, the defendant is also known by the name Lorenzo Ceatus Johnson. [2] Section 90.803, Florida Statutes, is entitled: "Hearsay exceptions; availability of declarant immaterial." It addresses admissible evidence, even though the declarant is available as a witness. Specifically section 90.803(6) is entitled: "Records of regularly conducted business activity," and reads in full as follows: (a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near t...
CopyCited 14 times | Published | Supreme Court of Florida | 1999 WL 394284
...Kling was permitted to testify that newspapers did not report that the victim's body and clothing were wet, her shoes were missing, and she was wearing stockings. The prosecutor argued that if Kling testified to what was not in newspaper accounts, this was not hearsay. However, police reports are hearsay. § 90.803, Fla....
...conclusion in that Kling's testimony depended on information from others. See Norton v. State,
709 So.2d 87, 95 (Fla. 1997). Here, the trial court, in admitting the testimony, may have relied upon the business-records exception to the hearsay rule, section
90.803(6), Florida Statutes (1985), which fails as a basis for admission because no actual records were offered or admitted. Oral testimony concerning business records is not admissible under this exception. §
90.803(6), Fla....
CopyCited 14 times | Published | Florida 3rd District Court of Appeal | 1997 WL 799591
...Davis had another altercation with the defendant and called 911 from a neighbor's house. The police again responded and she told them that Williams had threatened to kill her. At trial, the state sought to introduce Ms. Davis' statements to Officer Hunter on July 6th as excited utterances under section 90.803(2), Florida Statutes....
...In the second motion for rehearing in this case, the defendant argues that the Florida Supreme Court's decision in State v. Green,
667 So.2d 756 (Fla.1995), compels a reversal in this case. In Green, the Supreme Court held that a prior statement of a child victim of sexual abuse introduced pursuant to the provisions of section
90.803(23), Florida Statutes, which directly conflicted with the victim's trial testimony, was insufficient, standing alone, to sustain a criminal conviction....
...insufficient as a matter of law to prove guilt beyond a reasonable doubt. We reiterate that decision today, finding that our holding in Moore II applies regardless of whether the prior inconsistent statement is admitted under section
90.801(2)(a) or section
90.803(23)....
...es, to support a conviction. The rationale for these decisions is not clear. If the rationale is that the out-of-court statement is lacking the necessary reliability as a result of the circumstances in which it was made, the analysis is appropriate. Section 90.803(23) and the defendant's confrontation rights require this analysis....
...of the witness, the reasoning should not be followed. Although a prior statement which is admitted pursuant to section
90.801(2) is not sufficient by itself to support a conviction, the rationale should not be extended to statements admitted under a section
90.803 hearsay exception....
...The Court's expressed agreement with this concept is difficult to reconcile with its opinion in Green, which, as quoted above, specifically refuses to distinguish between prior inconsistent statements admitted under section
90.801(2) and those admitted under section
90.803(23) for purposes of establishing the legal sufficiency of a criminal conviction secured solely on the basis of such statements....
...evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." Id. The excited utterance exception to the hearsay rule, codified in section 90.803(2), Florida Statutes, is a firmly rooted exception to the hearsay rule....
...Like the Supreme Court of Florida, we find persuasive Professor Ehrhardt's conclusion that "although a prior statement which is admitted pursuant to section
90.801(2) is not sufficient by itself to support a conviction, the rationale should not be extended to statements admitted under a section
90.803 hearsay exception." In our view, even a child victim hearsay statement is sufficient, on its own, to sustain a conviction if the statement is determined to carry the "sufficient safeguards of reliability" specifically required by section
90.803(23), Florida Statutes....
CopyCited 13 times | Published | Supreme Court of Florida | 1988 WL 91408
...Appellant argues that these statements were not admissions against interest, but were hearsay and inadmissible. We find appellant's out-of-court statements both relevant and admissible. Although Jackson's statements to a detective at the University Hospital are hearsay, they are admissions and fall under section 90.803(18), Florida Statutes (1985). Additionally, when viewed in context with Jackson's statements to his mother, the jocular boastings of appellant are clearly relevant to Jackson's state of mind, and also fall squarely under section 90.803(3)(a), Florida Statutes (1985)....
CopyCited 13 times | Published | Florida 4th District Court of Appeal | 1988 WL 18691
...The state presented only the testimony of the probation intake officer who testified on the basis of her review of the probation department's records on appellant. Appellant objected to this testimony as hearsay. The trial court found that the probation department records fell within the business records exception of section 90.803(6), Florida Statutes (1985) and allowed the testimony....
CopyCited 13 times | Published | Florida 1st District Court of Appeal | 1990 WL 82113
...dment right of confrontation. A National Health Laboratories toxicologist supervisor testified at the hearing on behalf of the state. As custodian of records, her testimony qualified the laboratory report as a business record under the provisions of Section 90.803(6), Florida Statutes, and the statutory criteria therein provided were satisfied....
...ning the results of a urinalysis test, our sister court in Williams v. State,
553 So.2d 365, 366 (Fla. 5th DCA 1989) stated: Lab tests or other kinds of hearsay evidence may be admissible pursuant to various exceptions to the hearsay rule. See e.g., §
90.803(6), Fla....
...h need not take the form of cross examination of the technician who actually performed the test. AFFIRMED. ERVIN, J., and THOMPSON, FORD L. (Ret.), Associate Judge, concur. NOTES [1] Rule 803(6), Federal Rules of Evidence, is sufficiently similar to Section 90.803(6) such that the issues resolved by the Eighth Circuit in Baker are the same as those involved in the instant case....
CopyCited 13 times | Published | Supreme Court of Florida | 1990 WL 82926
...r but were unable to find any exculpatory records because none existed. The state's argument boils down to an attack on the relevancy of the payroll record. Specifically, the state relies on the hearsay exception for regularly kept business records, section 90.803(6) of the Florida Statutes (1981), and argues that (a) the payroll record was inherently unreliable and untrustworthy and did not comply with state and federal statutory requirements for migrant farm labor records; and (b) the payroll...
...Perez when she heard her co-worker *128 make the incriminating statement. [3] Thus, the payroll record had to satisfy an exception to the hearsay rule. §§
90.801-.802, Fla. Stat. (1981). We find that the evidence satisfied the hearsay exception of section
90.803(7) of the Florida Statutes (1981), which expressly provides for the admissibility as substantive evidence of assertions implied from the absence of an entry in the records of a regularly conducted activity....
...occurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances show lack of trustworthiness. § 90.803(7), Fla....
...dmissible. Because of the difficulty of stating in specific terms the circumstances of admissibility, the exception contains the phrase "unless the sources of information or other circumstances indicate a lack of trustworthiness." 6C Fla. Stat. Ann. § 90.803, at 273 (West 1979) (Law Revision Council Note 1976) (citation omitted); [5] Ehrhardt, supra, § 803.7, at 497 ("The motive of the entrant and manner of keeping the records could provide this lack of trustworthiness.")....
...[3] This unusual situation is in contrast to more common impeachment problems where the impeachment evidence need not be substantively true to have value as impeachment evidence, i.e., most prior inconsistent statements. [4] The state's argument relies on section 90.803(6) of the Florida Statutes (1981). Section 90.803(6) deals with the admissibility of regularly kept business records to prove matters asserted in the records. This case, however, concerns an implied assertion. We need not determine here whether an implied assertion falls within the ambit of section 90.803(6), because section 90.803(7) of the Florida Statutes (1981), expressly deals with an assertion implied from the absence of an entry in a regularly kept record. Thus, our analysis focuses on section 90.803(7). [5] This excerpt of the Law Revision Council Note directly referred to section 90.803(6), which allows for the admissibility of records of regularly conducted business activity. Because section 90.803(6) contains the identical "trustworthiness" requirement as section 90.803(7), and because the purpose of the two statutes is identical, we read them in pari materia to ascertain the meaning intended by the legislature in section 90.803(7)....
CopyCited 13 times | Published | Florida 1st District Court of Appeal | 2005 WL 1711666
...question by a person with knowledge of those matters, the record was kept in the course of regularly conducted activity and that it was made as a regular practice. Charles W. Ehrhardt, Florida Evidence § 803.6, at 785, 789, 791 (2004 ed.); see also § 90.803(6), Fla. Stat. (2004). Alternatively, "[s]ince July 1, 2003, it has also been possible to establish the predicate for business records `by a certification or declaration that complies with section [90.803(6)](c) and s....
...90.902(11).' Ch.2003-259, § 2, at 1299, Laws of Florida." Gray v. State, No. 1D04-3826, at 4 n. 1,
910 So.2d at 869 n.1 (Fla. 1st DCA July 25, 2005). [2] It is therefore possible that the State might have proven DOC's records admissible as official public records, under section
90.803(8), Florida Statutes (2004). Although we need not decide the issue, the question is whether DOC's release records involve "matters observed pursuant to duty imposed by law as to matters which there was a duty to report." §
90.803(8), Fla....
CopyCited 13 times | Published | Florida 2nd District Court of Appeal | 2001 WL 43074
...Mr. Gammon allegedly told his probation officer that he had used drugs and that he had gone to North Carolina. At the revocation hearing he denied making those statements, which would have been admissible in a criminal trial as admissions pursuant to section 90.803(18)(a), Florida Statutes (1999)....
CopyCited 12 times | Published | Supreme Court of Florida | 1988 WL 93749
...Brea filed two pretrial motions which alleged that the acquittal of his co-defendant, Perez, meant that Perez was no longer a co-conspirator and the tape-recorded statements of Perez would no longer be admissible under the co-conspirator exception to the hearsay rule. See § 90.803(18)(e), Fla....
...n informant, not a co-conspirator or agent of the defendant. A statement made by an informant is not made by someone acting in concert with the defendant and does not fall within the class of statements which may be considered admissions. See, e.g., § 90.803(18), Fla....
...State,
496 So.2d 120 (Fla. 1986), is no longer viable. Accordingly, we quash the decision below. We express no opinion on the issue of whether acquittal of the co-defendant on the ground of entrapment precludes introduction of the admissions of the acquitted party under section
90.803(18)....
...testimony established entrapment as a matter of law, due to the absence of any evidence that Perez was predisposed to commit the crime. After this ruling, Brea's motion for mistrial was granted by the trial court, in an abundance of caution. [3] See § 90.803(18), Fla....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 1996 WL 570217
...trial court of its obligation to make findings regarding whether "the time, content, and circumstances" of the out-of-court statements of the victim "provide sufficient safeguards of reliability" to justify their admission into evidence pursuant to section 90.803(23) of the Florida Evidence Code....
...one. After the state had concluded its case-in-chief, and immediately before appellant's counsel moved for a judgment of acquittal, the trial court made another statement on the record, intended to augment its previous *178 findings made pursuant to section 90.803(23) of the evidence code....
...Based on Hopkins v. State,
632 So.2d 1372, 1376 (Fla. 1994), we conclude that "[t]he trial court was put on notice of the potential error." See also In the Interest of R.L.R.,
647 So.2d 251 (Fla. 1st DCA 1994) (issue of sufficiency of findings pursuant to section
90.803(23) preserved for review because, read in context, objection clearly put parties and court on notice of its basis). Accordingly, we conclude that the issue was preserved for appellate review. Among the prerequisites to admissibility, pursuant to section
90.803(23), of an out-of-court statement by a child who is alleged to have been the victim of abuse or neglect are the requirements that the alleged child victim have "a physical, mental, emotional, or developmental age of 11 or less," and that the trial court find "that the time, content, and circumstances of the statement provide sufficient standards of reliability." Section
90.803(23)(c) expressly requires that the trial court "make specific findings of fact, on the record, as to the basis for its ruling" either admitting or excluding such a statement. See Hopkins,
632 So.2d at 1377 (section
90.803(23) clearly requires specific findings; "[m]ere recitation of the boilerplate language of the statute ......
...To the extent that the remaining findings were intended by the trial court to refer to "the time, content, and circumstances of the statement[s]," it seems to us that they militate against a finding of reliability, rather than in favor of one. The trial court addressed few, if any, of the factors listed in either section 90.803(23)(a)1 or Townsend....
...trial court for appellate review. The record in this case reflects only two places where an objection is discussed. At the conclusion of the proffer of Officer Wright's testimony outside the presence of the jury, the court made findings pursuant to section 90.803(23), Florida Statutes (1993)(Florida Evidence Code), which the majority finds insufficient....
...ing to the adequacy of his findings. Had an objection to findings been made, the trial judge could have addressed any alleged inadequacy now argued for the first time on appeal. The law is clear that the failure to make adequate findings pursuant to section 90.803(23) is not fundamental error....
...The supreme court wrote in a unanimous opinion: [T]he failure of a trial judge to make sufficient findings under the statute, in and of itself, does not constitute fundamental error. Hopkins; Seifert v. State,
616 So.2d 1044 (Fla. 2d DCA)(a trial court's insufficient findings under
90.803(23) do not equate with fundamental error), review granted,
626 So.2d 207 (Fla.1993); Jones v. State,
610 So.2d 105 (Fla. 3d DCA 1992)(issue of whether findings were sufficient under section
90.803(23) not preserved for review because no contemporaneous objection made to the findings), review denied,
620 So.2d 761 (Fla.1993)....
...Macyko was asked what R.R. had told her, the attorney representing the mother objected on the ground that the question sought to elicit hearsay statements of the child. During the course of the ensuing discussion, it became clear that the basis for the objection was section 90.803(23) of the Florida Evidence Code; and that all concerned, including the trial court, understood the basis for the objection....
...ion 90. 803(23). Even if they did not, I would find any error harmless beyond a reasonable doubt. State v. DiGuilio,
491 So.2d 1129 (Fla.1986). This is not a case where the trial judge failed to make any findings at all. The trial judge was aware of section
90.803(23), and expressly considered its requirements; he merely failed to articulate his findings to the satisfaction of the majority....
...Mathis was tested and determined to have blood type B. The uncle/custodian was also tested, and determined to have blood type A. The child victim moreover testified at trial. Mathis' confrontation argument therefore is meritless. Our supreme court, in addressing the constitutionality of section 90.803(23), said: "Secondly, the child victim must either testify or be unavailable as a witness....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 1990 WL 57805
...Appellant first argues that the trial court erred in admitting the testimony of Ms. Chadik, the mother, and investigator McCormick concerning T.J.'s out-of-court statements, because these statements constituted hearsay and the procedural safeguards of section 90.803(23), Florida Statutes (1987), the hearsay exception for child victims of sexual abuse, were not met. Section 90.803(23)(c), requires the court to make specific findings of fact on the record, setting forth the reasons the court determined the out-of-court statements to be reliable, and the reason it discounted any indications of a lack of reliability....
...to T.J.'s out-of-court statements. This was clear error. Fricke v. State,
561 So.2d 597 (Fla. 3d DCA 1990) (evidence of out-of-court statements by child abuse victim admitted pursuant to the recently created exception to the hearsay rule provided by section
90.803(23) violates the defendant's Sixth Amendment right of confrontation unless statutory requirements are strictly satisfied)....
...other, a child protection team investigator, and an HRS investigator. The circumstances surrounding these statements were delineated upon proffer to the court outside the presence of the jury, in accordance with the predicate for admissibility under section 90.803(23)(a)1, Florida Statutes....
...mstances provided adequate safeguards of reliability so as to justify admission of the evidence. However, the court did not clearly articulate specific and express findings of fact, on the record, as to the basis for this ruling, as *636 required by section 90.803(23)(c), Florida Statutes....
...arly in a courtroom setting when visually and physically confronted by the defendant. The difficulties inherent in such intimidation have led many jurisdictions, including Florida, to approve alternative methods of securing such testimony. See e.g., section 90.803(23), Florida Statutes....
...Also training involved with violence in families, abuse in families, and how to intervene in those situations and to investigate them. [3] There are, of course, exceptions to this usual practice in respect to child witnesses where the court makes a finding pursuant to section 90.803(23), Florida Statutes, that such interrogation should take place outside the courtroom because it has been shown that the child will suffer harm if compelled to testify in court....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 1991 WL 43187
...DOA. Each of the challenged items of correspondence was admissible under the admissions exception to the hearsay rule, as correspondence from DOA's consulting agents and from a legislator pertaining to activities of the legislature relative to DOA. §
90.803(18)(d), Fla. Stat. (1989). Also, the reports were submitted in connection with activity of DOA *646 mandated by Florida law. §
121.031(3), Fla. Stat. (1989). They were therefore properly admitted under the business records exception. §
90.803(8), Fla....
CopyCited 12 times | Published | Florida 4th District Court of Appeal | 1990 WL 91917
...Thus, the trial court was correct in its reasoning in denying the motion of judgment of acquittal. ADMISSION OF THE CHILD VICTIM'S STATEMENTS The trial court permitted Martinez and Serra to testify as to what the boy told them right after the incident pursuant to the hearsay exception set out in section 90.803(23), Florida Statutes: Hearsay exception; statement of child victim of sexual abuse or sexual offense against child....
...Martinez and Trooper Coates as to his butt that his butt hurt and a stick or something being placed in his butt. I find that is reliable and is consistent and it's also reliable. So based upon the testimony and those findings by the Court the Court's going to rule that the hearsay statements can come in under Florida Statute
90.803(23). All right. Anything further as to this hearing? In Perez v. State,
536 So.2d 206 (Fla. 1988), the supreme court held that section
90.803(23) comports with the requirements of the confrontation clauses of both the federal and Florida constitutions since it calls for specific findings of reliability and since it mandates that either the child testify or be unavailable. These requirements were all met here. In Distefano v. State,
526 So.2d 110 (Fla. 1st DCA 1988), the court held that an out-of-court account of a sexual offense given by a child victim was admissible under section
90.803(23) in view of evidence that the child was emotionally affected by the incident and that she reported it to her mother a few minutes after it occurred....
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 2000 WL 201790
...It declined to allow him to voir dire the victim to establish whether she was competent to testify prior to her testimony. It allowed the State to introduce extensive child victim hearsay as cross-examination in the defense's case without complying with the requirements of section 90.803(23), Florida Statutes (1997)....
...the little girl. On cross-examination over objection, the State was allowed to elicit testimony from this witness concerning the hearsay statements of the little girl. This hearsay was introduced without any of the procedural safeguards required by section 90.803(23), Florida Statutes (1997)....
...Palazzolo and the jury from knowing exactly what occurred at the interview. Again, on cross-examination, the State was allowed, over objection, to have the witness testify in detail about the hearsay statements of both children. The court made no effort to comply with section 90.803(23)....
...Over objection, the trial court allowed both witnesses on cross-examination to provide extensive hearsay testimony from the victim and her brother. Nothing the defense did in this case waived the requirement for a judicial determination of reliability prior to the admission of these statements. See § 90.803(23)(a)(1), Fla. Stat. (1997). We doubt that these statements were admissible within the scope of cross-examination, but even if they were, the rules of hearsay still apply in cross-examination. The court was required to comply with the requirements of section 90.803(23)(a) before admitting the hearsay....
CopyCited 12 times | Published | Florida 3rd District Court of Appeal | 2000 WL 140102
...e records confirmed an eight minute telephone call originating in London, England in May of 1993. Regardless of the confirmation, Ashton's testimony established prima facie evidence of a party admission which was admissible against Pine Island under section 90.803(18)(d), Florida Statutes (1995)....
...ts dispositive. DuPont suggests that plaintiffs failed to prove that Mrs. Castillo was exposed to Benlate in their case against Du-Pont. It argues that the statement of Lynn Chaffin, although admissible against Pine Island as a party admission under section 90.803(18)(d), was inadmissible hearsay as against DuPont....
CopyCited 12 times | Published | Florida 3rd District Court of Appeal | 1987 WL 2679
...See also Drayton v. State,
292 So.2d 395 (Fla. 3d DCA), cert. denied,
300 So.2d 900 (Fla. 1974). However, the first part of Pieczynski's statement, that he was sorry and could not help himself, is admissible as an admission from which guilt could be inferred. §
90.803(18), Fla. Stat. (1985). See Ehrhardt, Florida Evidence § 803.18 & n. 13 (2d ed. 1984) (exception exists under §
90.803(18) for statements by an accused offered by the prosecution, because of distinction in substantive criminal law between a confession which acknowledges a criminal act and an admission from which guilt might be inferred; proof of corpus delecti is not necessary predicate for admission)....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 1988 WL 131115
...g in cocaine. The state appeals from a nonfinal order suppressing each defendant's hearsay statements implicating the codefendant as a coconspirator, the court finding inapplicable the "coconspirator rule" codified in *290 the Florida Evidence Code, Section 90.803, Florida Statutes....
...The trial court granted the defendants' motions to suppress the defendants' various statements made during the above described events and transactions, holding that there was not substantial evidence of a conspiracy and the defendants' participation in it independent of the hearsay statements of the defendants. [2] Section 90.803(18)(e), Florida Statutes (1987), contains the "coconspirator rule," which permits the admission of statements made by coconspirators into evidence against a defendant who is a member of the conspiracy even though the statements would otherwise be inadmissible as hearsay: 90.803 Hearsay exceptions; availability of declarant immaterial....
...conspiracy existed, that the conspirators and defendant were members of the conspiracy, and the statements were made in the furtherance of the conspiracy.
590 F.2d at 582. In applying the first prong, the Morales court said that, in conformance with Section
90.803(18)(c), the trial court should, upon defendant's motion, instruct the jury that the conspiracy and each member's participation in it must be established by independent evidence....
...ion" based upon United States v. Apollo,
476 F.2d 156 (5th Cir.1973) and that James overruled Apollo. Nevertheless, as held in Boyd v. State,
389 So.2d 642 (Fla. 2nd DCA 1980), the Apollo rule "lives on in Florida" because of the express language of Section
90.803(18)(e) which is not included in the federal counterpart, Rule 801(d)(2)(E), Federal Rules of Evidence....
...However, we cannot agree with Romani in its other principal holding that the Bourjaily decision relative to the type of evidence which may be considered in the trial court's preliminary determination of admissibility is applicable in the operations of the pertinent Florida Evidence Code provision, Section 90.803(18)(e)....
...out-of-court statements. 483 U.S. at ___,
107 S.Ct. at 2780,
97 L.Ed.2d at 154. Such determination would have to be based upon independent proof. Bourjaily, in interpreting Federal Rule of Evidence 801(d)(2)(E) (the federal counterpart of Florida's Section
90.803(18)(e)), held that the trial court may consider the hearsay statements themselves in determining whether a conspiracy has been adequately demonstrated....
...vides that the trial court is "not *294 bound by the rules of evidence except those with respect to privilege" in determining preliminary questions concerning the admissibility of evidence. The Florida Evidence Code contains no such provision. Also, Section 90.803(18)(e) of the Florida Code contains the following provision not included in the Federal Evidence Rules: Upon request of counsel, the court shall instruct the jury that conspiracy itself and each member's participation in it must be est...
CopyCited 12 times | Published | Supreme Court of Florida | 2000 WL 1227764
...The blood serum test result was then converted to a whole blood result reflecting a blood alcohol level of from .23 to .25. . . . . In order to introduce the blood alcohol report, the state called the hospital's medical records custodian who laid the necessary foundation under the business record hearsay exception, section 90.803(6)(a), Florida Statutes (1995)....
...of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness. § 90.803(6)(a), Fla....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 2004 WL 1175488
...at his girlfriend's house at the time the incident occurred. The State also sought to play for the jury the tape-recorded statements of the recanting witnesses as substantive evidence under the "recorded recollection" exception to the hearsay rule. § 90.803(5), Fla....
...Recorded Recollection Over timely defense objection, the trial court allowed the State to play the audiotapes during the testimony of Detective Brown on the theory that they were admissible into evidence as recorded recollection. This exception to the hearsay rule, set forth in section 90.803(5), provides as follows: RECORDED RECOLLECTION.A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to...
...evidence emphasized that the witness "had no present recollection" independent of the record. E.g., Smith v. Hinkley,
98 Fla. 132,
123 So. 564, 566 (1929); Montgomery Ward & Co. v. Rosenquist,
112 So.2d 885, 887 (Fla. 2d DCA 1959). Presently, under section
90.803(5), a sufficient foundation may be shown if the witness merely "now has insufficient recollection to enable the witness to testify fully and accurately." See Golden v....
...*741 Excited Utterance Finally, the State argues that the portions of the tape-recorded statements in which the recanting witnesses recounted their versions of Smith's alleged statements following the shooting were properly admissible under the "excited utterance" exception to the hearsay rule. See § 90.803(2); Rogers v....
CopyCited 11 times | Published | Florida 3rd District Court of Appeal | 1991 WL 87226
...State,
582 So.2d 71 (Fla. 3d DCA 1991). A new trial is therefore required. Reversed and remanded. NOTES [1] Our rulings make it unnecessary directly to address whether it was also error to admit the contents of the victim's statement to the examining physician under section
90.803(4), Florida Statutes (1989)....
...nd thus interfering with their relationship, this fact, and thus the alleged motive to falsify, arose prior to any of the statements in question. Jackson v. State,
498 So.2d 906 (Fla. 1986); Lazarowicz v. State,
561 So.2d 392 (Fla. 3d DCA 1990). [3] Section
90.803(23)(a), Florida Statutes (1989) does not apply because the child is over eleven years old....
CopyCited 11 times | Published | Florida 5th District Court of Appeal | 1995 WL 385395
...Thus, certiorari review is appropriate. THE TRIAL COURT ERRED IN RULING THE EVIDENCE WAS INADMISSIBLE Susie Johnson had told her daughter that she was afraid of the defendant and had taken steps to hide from him. The state argues these statements are admissible under section 90.803(3)(a)(1), Florida Statutes....
...Prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action. It is true that generally a victim's prior expressions of fear of a defendant are not admissible under section 90.803(3)(a)(1), Florida Statutes, because the victim's state of mind is not relevant....
CopyCited 11 times | Published | Florida 5th District Court of Appeal
...the circumstances. *807 The essential inquiry thus becomes whether a reasonable person would have denied the statements under the circumstances. McCormick, Evidence, § 270 (2d ed. 1972). Florida has incorporated this rule into its Evidence Code as section
90.803(18)(b), Florida Statutes (1981), which provides: The provision of section
90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness: (18) Admissions A...
...Clearly, an admission by acquiescence can be seen by these repeated statements made in Privett's presence without any objection by him and, indeed, with statements of his own tending to show the truth of the conversations. Here, the statements were admissible against Privett via section 90.803(18)(b), and were properly allowed in by the trial court....
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 1990 WL 52797
...[excrement] out of him." A nurse from the Child Protection Team conducted an interview with the child on videotape four days later in which he repeated most of the foregoing statements. In finding the videotape and other statements admissible under Section 90.803(23), Florida Statutes (1987), the court found that the statements were corroborated by other evidence, and concluded they were reliable based upon the mental and physical age and capabilities of the child, the duration of the offense, and the relationship of the defendant to the victim....
...id not go inside.'" Jaggers,
536 So.2d at 324. The court reasoned: The rule that prior inconsistent statements may not be used substantively as the sole evidence to convict ( see [ State v.] Moore, [
485 So.2d 1279 (Fla. 1986)]), applies to [s]ection
90.803(23) evidence as well....
...er the facts of this case violated appellant's sixth amendment right to confrontation and cross-examination. See Moore,
485 So.2d at 1282 (Overton, J., concurring specially); Everett v. State,
530 So.2d 413 (Fla.4th DCA 1988). Moreover, to interpret section
90.803(23) otherwise would allow that section to be used to avoid the provision of section
90.608(1) that prohibits a party from impeaching his or her own witness....
...cept when offered to contradict and to impeach the direct testimony offered at trial." Jaggers,
536 So.2d at 324. Consequently, as applied to the facts at bar, the out-of-court statements do not qualify as lawful exceptions to the hearsay rule under section
90.803(23), because they lack the requisite "trustworthiness," as provided in subsection (23)(a)....
...1988), on which rehearing was denied two months after release of Jaggers (decided by a split panel with dissent based on this issue). Glendening affirms a decision (from another second district panel having no common members with Jaggers ) admitting prior inconsistent hearsay statements under section
90.803(23), Florida Statutes, when the three year old victim recanted during section
92.53(1) testimony held to be equivalent to trial testimony....
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 1991 WL 54131
...e in sexual battery cases. See Monarca v. State,
412 So.2d 443, 445 (Fla. 5th DCA 1982) (such statements are admissible to rebut the inference of consent which might be drawn from prolonged silence of the victim). It was also admissible either under section
90.803(1) as "a spontaneous statement describing an event made while *374 the declarant was perceiving the event or immediately thereafter," or section
90.803(2) as "a statement relating to a startling event made while the declarant was under the stress of excitement caused by the event." It was undisputed that the victim made the statement to her friend immediately after the attack, and that she was "hysterical and crying" when doing so....
CopyCited 10 times | Published | Florida 5th District Court of Appeal | 1991 WL 191586
...REVERSED and REMANDED for a new trial with instructions to the trial court to enter an order granting the judgment of acquittal on the charge of false imprisonment. COWART and HARRIS, JJ., concur. NOTES [1] §
794.011(5), Fla. Stat. (1987). [2] §
787.02(1)(a), Fla. Stat. (1987). [3] Section
90.803(4), Florida Statutes (1987) provides for the admissibility of statements made for purposes of medical diagnosis or treatment even though declarant is available as a witness. [4] The State does not contend that the statements were admissible as spontaneous statements (section
90.803(1)) or the "first report" of a sexual assault or excited utterance (section
90.803(2)) exceptions to the hearsay rule....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 1991 WL 183021
...and competence of her testimony. It is not necessary to address in detail the remaining points on appeal. We find that the trial court's reasons for admitting the child's out-of-court statements are also not sufficient to satisfy the requirements of section 90.803(23)(a), Florida Statutes, 1987, which states: the following are not inadmissible as evidence, even though the declarant is available as a witness: ......
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2008 WL 4682524
...Joyner and accordingly, the third prong is satisfied. [3] Thus, Mr. Joyner's statements were inadmissible hearsay. In most instances, this would be the end of the analysis, but we sound one final note. To be hearsay, the statement must be offered for its truth. § 90.803(1)(c), Fla....
CopyCited 10 times | Published | Florida 5th District Court of Appeal | 2001 WL 1516914
...This matter is presently pending before the Florida Supreme Court for consideration. Jenkins also challenged the use of actuarial instruments as not meeting the Frye standard. Because of our ruling on the hearsay challenge, it is unnecessary for us to address this issue. [2] Even though section 90.803(22), Fla....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 1988 WL 124794
...We find that the state failed to meet its burden of proof regarding a violation of condition eight. The information contained in the telephone logs was hearsay, and the state did not establish the necessary foundation to admit this evidence as an exception to the hearsay rule as a business record. See § 90.803(6), Fla....
CopyCited 10 times | Published | Supreme Court of Florida | 2004 WL 2534277
...The interview was videotaped. At the time of trial, the child victim was eight years old and available to testify at trial. In addition to presenting the child as a witness, the State intended to present the videotaped interview as substantive evidence under section 90.803(23)(a), Florida Statutes (2002)....
..."perhaps corroborating evidence is not required [to sustain a criminal conviction] where the reviewing court `has confidence' in the prior statement." Id. Under this standard, the Fifth District concluded that the child's out-of-court videotaped statement, which had been admitted pursuant to section 90.803(23), was sufficient to sustain Beber's conviction of sexual battery, even though there is no true corroborating evidence other than the child's in court testimony that Beber perpetrated various other sexual crimes on him, and even thou...
...e and Green. The Court accepted review and heard oral argument on the issue of whether Beber's capital sexual battery convictions could be sustained where the only evidence of fellatio was the child's hearsay statements which had been admitted under section 90.803(23)....
...This Court agreed that "the risk of convicting an innocent accused is simply too great when the conviction is based entirely on prior inconsistent statements." Id. at 1281. In Green, this Court was asked whether a child victim's prior inconsistent hearsay statements, which were admitted as substantive evidence pursuant to section 90.803(23), were sufficient to sustain a criminal conviction....
...ng that this evidence, standing alone, was insufficient to convict Green. Green,
667 So.2d at 760. We also emphasized that the holding in Moore applied "regardless of whether the prior inconsistent statement is admitted under section
90.801(2)(a) or section
90.803(23)." Id....
...ndant [would] violate[ ] the [defendant's] sixth amendment right to confrontation and cross-examination." Id. (quoting with approval Jaggers v. State,
536 So.2d 321, 325 (Fla. 2d DCA 1988)). While inconsistent statements admitted under section *1253
90.803(23) can be used as substantive evidence when other proper corroborating evidence is admitted, in Green's case we concluded that the testimony of the examining physician was "simply not adequate to supply that corroboration." Id. at 761. In M.B., this Court addressed the child victim hearsay exception in section
90.803(23) in the context of a child dependency proceeding. First, the Court held that a child's prior out-of-court statements are admissible as substantive evidence under section
90.803(23) even if inconsistent with the child's in-court testimony, so long as the out-of-court statements satisfy the reliability safeguards established in the statute and refined in subsequent case law. M.B.,
701 So.2d at 1162. Second, and germane to the Fifth District's decision in this case, we concluded that the combination of the child's prior inconsistent statements admitted under section
90.803(23) and medical evidence corroborating the out-of-court statements was sufficient to establish the dependency of the child under the preponderance of the evidence standard applicable to dependency proceedings....
...sexual battery. See Green,
667 So.2d at 760-61. Accordingly, we quash the decision below and remand for proceedings consistent with this opinion. It is so ordered. PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, CANTERO, and BELL, JJ., concur. NOTES [1] Section
90.803(23) provides a hearsay exception for the out-of-court statements made by a child victim when the time, content, and circumstances of the statement provide sufficient safeguards of reliability....
...e statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement. (c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection. § 90.803(23), Fla....
...d's language was consistent with his age; there was no evidence that the child had been coached, conditioned, or interviewed too many times; and the circumstances surrounding the videotaped interview offered sufficient safeguards of reliability. See § 90.803(23)(a)(1), Fla....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2006 WL 1476171
...Excited Utterances Over objection, the state introduced Schaab's statements to the deputies at the scene, as well as statements she made to Mariano's sister during an early morning phone call, as excited utterances, an exception to the hearsay rule. Section 90.803(2), Florida Statutes, provides: (2) Excited utterance....
...Generally, the most litigated element of the excited utterance factors is the time element. In State v. Jano,
524 So.2d 660 (Fla.1988), the supreme court noted, "`As long as the excited state of mind is present when the statement is made, the statement is admissible if it meets the other requirements of Section
90.803(2)....
CopyCited 10 times | Published | Supreme Court of Florida | 1995 WL 313783
...TESTIMONY? Id. at 111. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Steven Jerome Anderson was charged with lewd and lascivious assault upon a child. Prior to trial, the State gave notice of its intent to introduce hearsay statements under section 90.803(23), Florida Statutes (1991)....
...that while she was on a fishing pier across from her house during daylight hours, Anderson had approached her and touched her with his penis. Anderson did not object to the introduction of the statements, and there was no hearing as contemplated by section 90.803(23)....
...Wyatt v. State,
641 So.2d 1336 (Fla. 1994), cert. denied, ___ U.S. ___,
115 S.Ct. 1983,
131 L.Ed.2d 870 (1995); Western Union Tel. Co. v. Merritt,
55 Fla. 462,
46 So. 1024 (1908). In addition, a trial court's failure to make sufficient findings under section
90.803(23) in and of itself does not constitute fundamental error....
...Townsend,
635 So.2d 949 (Fla. 1994). On the other hand, had an objection been made and a hearing been held, there is a good likelihood that the hearsay statements could not have been admitted because of the lack of corroborative evidence required under section
90.803(23)(a)2.b....
...Because our holding is limited to the facts of this case, we choose not to answer the more broadly worded certified question. We quash the decision below and remand with directions that Anderson's conviction be reversed. It is so ordered. OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur. NOTES [1] Section 90.803(23), Florida Statutes (1991), provides: HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 1999 WL 285023
..., we conclude that the trial court committed reversible error when it held that one of those out-of-court statements qualified as other corroborative evidence of the offense sufficient to support the admissibility of the out-of-court statements. II. Section 90.803(23)(a)2b Corroborative Evidence Requirement Section 90.803(23) of the Florida Evidence Code addresses the circumstances in which otherwise inadmissible out-of-court statements made by an alleged child victim may be admitted in evidence at trial....
...esses who testified regarding statements made to them by the child regarding the offense. When the trial court inquired about the existence of corroborative evidence, the prosecutor correctly responded that corroboration was not required pursuant to section 90.803(23) because the child had testified. Apparently concerned that its finding regarding competence might be reversed on appeal, the trial court held, over objection, that the child's out-of-court statements had been sufficiently corroborated for purposes of section 90.803(23)(a)2b by two pieces of evidencean out-of-court statement made by the child to the effect that her vaginal area hurt when her grandmother tried to wash her; and a statement made by appellant at the time of his arrest admitting that...
...The state asserts that, because the out-of-court statements were sufficiently corroborated, any error regarding the competency finding would be harmless in light of the other evidencei.e., the out-of-court statements and we should affirm. Appellant first argues that a plain reading of section 90.803(23)(a)2b establishes that the evidence offered as corroborative may not consist of one or more of the child victim's out-of-court statements because it speaks in terms of "other corroborative evidence of the abuse or offense." Accordin...
...Although not previously directly addressed in Florida, there does appear to be support for appellant's position in dicta. Thus, in State v. Townsend,
635 So.2d 949, 957 (Fla.1994), the court said that "the other corroborating evidence requirement [in section
90.803(23)(a)2b] assures that a defendant will not be convicted solely on the basis of the hearsay testimony." It would seem that permitting one or more of the alleged child-victim's out-of-court statements to be used to satisfy the corroboration requirement of section
90.803(23)(a)2b would permit a defendant to "be convicted solely on the basis of the hearsay testimony." Moreover, in Jones v. State,
728 So.2d 788, 24 Fla. L. Weekly D569 (Fla. 1st DCA Feb.24, 1999), we held that similar fact evidence could be used to satisfy the "other corroborative evidence" requirement in section
90.803(23)(a)2b....
...Additional evidence of a different character to the same point." Black's Law Dictionary 344 (6th ed.1990). The two leading legal encyclopedias are to the same effect. 32A C.J.S. Evidence § 1302 (1996); 81 Am.Jur.2d Witnesses §§ 1001, 1002 (1992). We can think of no good reason to ascribe to the phrase as used in section 90.803(23)(a)2b a meaning different from that generally recognized in legal circles....
...ense occurred. Id. at D570,
728 So.2d at 791. The courts in Washington and Colorado have addressed whether a child victim's out-of-court statements can serve as corroborative evidence for purposes of evidence code provisions substantively similar to section
90.803(23)(a)2b....
...ce." (Emphasis added.) Had such been its intent, the legislature would have omitted any requirement regarding corroboration, providing instead that only reliability need be established in order for such statements to be admissible. Moreover, to read section 90.803(23)(a)2b as the state urges would permit those charged *1122 with crimes against children to be convicted based solely upon hearsay evidence. Accordingly, we hold that out-of-court statements of the alleged child victim may not be used to satisfy the "other corroborative evidence" requirement of section 90.803(23)(a)2b....
...We address next whether the statement made by appellant when he was arrested, admitting that he could have accidentally touched the child's vagina "a lot of times" while playing with her, may constitute "other corroborative evidence" for purposes of section 90.803(23)(a)2b....
...statement made at the time of his arrest is hearsay. However, he is incorrect when he says that the statement does not fit within any exception to the hearsay rule. The statement is clearly admissible as an admission by a party-opponent, pursuant to section 90.803(18) of the Florida Evidence Code....
...These out-of-court statements and actions are admissible, not because they were against the interests of the party when they were made, but because they are statements made by an adversary and because the adverse party cannot complain about not cross-examining himself or herself. There is no requirement under section 90.803(18), or in the reported decisions that the admissions be against a party's interest....
...The common name of the exception, e.g., admission, may be misleading since there is no requirement that the adversary admit anything in the statement. A more precise term for the exception is "statement by a party-opponent." An exculpatory statement of a party is admissible against the party making the statement under section 90.803(18)....
...A trier of fact might well conclude that appellant's explanation at the time of his arrest that the touchings were accidental was so inherently implausible in light of the other circumstances that it evidences a consciousness of guilt. For purposes of section 90.803(23)(a)2b, the trial court is the fact-finder. There is nothing in section 90.803(23)(a)2b that requires the state to present the "other corroborative evidence of the abuse or offense" at trial....
...lt of a hearing held either before the trial or during the trial, but out of the jury's presence. We hold that appellant's statement made at the time of his arrest may qualify as "other corroborative evidence of the abuse or offense" for purposes of section 90.803(23)(a)2b....
...We have held here that reliance on the child's out-of-court statement was error. Because we cannot determine from the record whether the trial court would have found sufficient corroboration in appellant's statement, alone, to satisfy the requirement of section 90.803(23)(a)2b, we do not address whether, given the facts of this case, such a finding would be within the trial court's discretion....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 2005 WL 607907
...nd lascivious act, pursuant to section
800.02, Florida Statutes (2002), and (II) trial counsel provided ineffective assistance on the face of the record by failing to object to the testimony of the child victim's mother on the basis of hearsay under section
90.803(23), Florida Statutes (2002)....
CopyCited 10 times | Published | Florida 5th District Court of Appeal | 2002 WL 396766
...The Florida Supreme Court has likewise held that rules that govern the admissibility *1094 of evidence generally do not violate the prohibition against ex post facto laws. In Glendening, the court addressed an ex post facto objection to retrospective application of section
90.803(23), Florida Statutes (1985), which allowed the introduction of out-of-court statements made by a child victim of sexual abuse if the child had a physical, mental, emotional, or developmental age of eleven or less. Notably, the defendant in Glendening was charged with violation of section
794.011(2), Florida Statutes (1985). The defendant argued that retrospective application of section
90.803(23) implicated the fourth category of ex post facto law because it "alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense."
536 So.2d at 215....
...In rejecting this argument and finding that the Ex Post Facto Clause was not violated, the court relied on the decisions in Hopt and Thompson and stated: The same reasoning which resulted in the Supreme Court's determination that the statutes in Hopt and Thompson were procedural leads to the conclusion that section
90.803(23), Florida Statutes, is also procedural and that the statute does not affect "substantial personal rights." As in Hopt, "[t]he crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by" the enactment of section
90.803(23).
110 U.S. at 589-90,
4 S.Ct. at 209-10. As in Thompson, section
90.803(23) "left unimpaired the right of the jury to determine the sufficiency or effect of the evidence declared to be admissible, and did not disturb the fundamental rule that the state ... must overcome the presumption of his innocence, and establish his guilt beyond a reasonable doubt."
171 U.S. at 387,
18 S.Ct. at 924. Accordingly, we conclude that the district court below correctly held that application of section
90.803(23) in the present case does not violate the prohibition against ex post facto laws....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2007 Fla. App. LEXIS 9214, 2007 WL 1690027
...in either an individual or a representative capacity; (b) A statement of which the party has manifested an adoption or belief in its truth; (c) A statement by a person specifically authorized by the party to make a statement concerning the subject; § 90.803(18)(a)-(c), Fla....
...s present at trial. Hunt v. Seaboard Coast Line R. Co.,
327 So.2d 193, 195-96 (Fla.1976). However, we find the trial court erred in allowing K.R.'s statements to come in as they were not made by C.A., and they were offered against C.A., not K.R. See §
90.803(18)(a), Fla. Stat. C.A. did not manifest an adoption or belief in the statement, or authorize K.R. to make the statement in his behalf. See §
90.803(1)(b)-(c), Fla....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2003 WL 21536703
...Unemployment Appeals Comm'n,
635 So.2d 1028, 1032 (Fla. 2d DCA 1994); see also Brown v. Int'l Paper Co.,
710 So.2d 666, 668 (Fla. 2d DCA 1998). The computer report was hearsay. Although it and the time sheets might have been introduced under the business records exception to the hearsay rule, §
90.803(6)(a), Fla....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2005 WL 3299368
...5th DCA 2001) ("Obviously [section
394.9155(5)] must be construed in light of the Fourteenth Amendment right of confrontation.") *268 Here, the trial court properly found that the statements made by S.W. to Sharon Moore were excited utterances and, as such, were hearsay exceptions under Florida Statute Section
90.803(2)....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 1989 WL 154855
...The defendant further argues that evidence of collateral crimes was improperly received and that the trial court abused its discretion when it allowed the five year old victim to "testify," unsworn, without making any determination as to her competency and understanding of the truth. We affirm. Section 90.803(23), Florida Statutes (1987) establishes an exception to the hearsay rule and allows witnesses to testify to reliable out-of-court statements made by children no more than eleven years old....
...l contact. Moreover, another state witness, whose testimony was never objected to, testified that the defendant admitted he might be guilty of lewd and lascivious behavior toward the victims. Therefore, we hold, from all of the foregoing, that while section 90.803(23) may not have been complied with in every technical detail, there was sufficient compliance....
...We, therefore, reverse and remand for resentencing on this. See Fennell v. State,
544 So.2d 1017 (Fla. 1989). We stress that this opinion is limited to all of its facts. In Florida, hearsay is not permitted except for recognized exceptions. One of the more poignant of these exceptions is section
90.803(23) which permits witnesses to repeat out-of-court statements by child sexual abuse victims....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 1926
...is available to testify as to manner of preparation, reliability and trustworthiness of the product." Pickrell v. State,
301 So.2d 473, 474 (Fla. 2d DCA 1974) (emphasis in original); (interpreting the business records exception to the hearsay rule, Section
90.803(6), Florida Statutes)....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 1991 WL 146646
...ion of Condition 14. We agree. Hearsay is admissible in probation revocation proceedings, but cannot be the sole basis for revocation. Bass v. State,
473 So.2d 1367 (Fla. 1st DCA 1985). The business records exception may apply to lab test results if section
90.803(6), Florida Statutes, is satisfied....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal
...The new evidence code is not applicable here, its effective date being subsequent to the date of respondent's trial. However, a review of its pertinent provisions is enlightening. The former res gestae exception to the hearsay rule is not included in the new evidence code. Section 90.803(2), Florida Statutes (1979), however, provides for a newly designated "excited utterance" exception to the hearsay rule....
...to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Goolsby's statement clearly falls within the definition of an excited utterance. Therefore, the only question is whether Section 90.803(2) provides for a new exception to the hearsay rule in Florida, or merely renames an existing exception....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 2002 WL 553394
...911 Tape Appellant argues that the 911 tape should not have been admitted as an excited utterance because Mrs. Werley placed the call over an hour after the alleged battery and after she had time to reflect on several ongoing disagreements with her husband. See § 90.803(2), Fla....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 1998 WL 568123
...I find no abuse of discretion in permitting the testimony of witness David Stivers under Binger v. King Pest Control,
401 So.2d 1310, 1314 (Fla.1981). Stivers' testimony about statements made by GMAC employee Pudge Donato were exceptions to the hearsay rule under section
90.803(18), Florida Statutes (1997)....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 1989 WL 101584
...[2] In conjunction with further proceedings including a retrial, it should not be inferred that this court has ruled adverse to the defendant as to other issues urged on this appeal for reversal. (a) The record does not show a proper objection at trial to the testimony offered under section 90.803(23), Florida Statutes, of a child protection team member as to the hearsay testimony of the child-victims....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 2002 WL 2001331
...There was no immediate complaint or other indication that anything had taken place. In Townsend there had been some indication of trauma. Here there was nothing and the Supreme Court in Townsend declared that without corroboration out of court testimony under [section 90.803(23) ], Florida Statutes, is unconstitutional....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 1994 WL 502300
...In this conversation she related what the uncle had done to her. The state sought to admit evidence of the victim's statement by way of testimony from the mother about this conversation. A hearing was held to determine if the hearsay testimony met the requirements for admission under section 90.803(23)....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 1996 WL 511551
...The victim proceeded to give a more detailed narrative statement of the events to the officer. Over appellant's objection the trial court allowed the police officer to testify as to the victim's statements as an exception to the hearsay rule under section 90.803(2), Florida Statutes (1995) which provides: (2) EXCITED UTTERANCE.A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 1991 WL 211248
...obation department's "paperwork" on the defendant. Such "paperwork" was proffered by the prosecuting attorney to the trial court as a business record, although none of the requirements for the admission of same in evidence was ever established under Section 90.803(6), Florida Statutes (1989); such "paperwork," however, was not received in evidence by the trial court....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2004 WL 2347598
...prescribed by these rules, depositions may be used for any purpose permitted by the Florida Evidence Code (chapter 90, Fla. Stat.). This amendment is consistent with the 1980 amendment to Rule 32 of the Federal Rules of Civil Procedure. Id. at 798. Section 90.803, Florida Statutes (2002), states in pertinent part: The provision of s....
...a risk of harm to his own interests at the time he spoke. Hunt v. Seaboard Coast Line R. Co.,
327 So.2d 193, 195-96 (Fla.1976) (citations omitted). Under this definition, the statements of the Redlands employees are admissions within the meaning of section
90.803(18)(d) as the statements concerned matters regarding this specific accident arising from their employment and were made while the deponents were still employees of Redlands. Similarly, as noted in the Law Revision Council Note to section
90.803: In Gordon v....
...ment and relating to a matter which is not beyond the penumbra of his duties or employment, is a recognized exception to the hearsay rule, and such a statement by the employee will be admissible against the employer as an admission against interest. Section 90.803, Fla. Stat., Law Revision Council Note 1976. We therefore conclude that the statements in the depositions of the Redlands employees are admissible as admissions under section 90.803(18)....
...There, the trial court had admitted the deposition of a non-party witness as substantive evidence pursuant to Rule 1.330(a)(1), even though the witness's unavailability had apparently not been proven, because it found the deposition was permitted under the evidence code as "former testimony" under section 90.803(22), even though it was taken as a discovery deposition in the same proceeding....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 2004 WL 2481315
...de by Frederick and Christina after the incident to prove that appellant had intentionally stabbed Frederick. Recognizing these statements were hearsay, the State sought their admission under the excited utterance exception to the hearsay rule. *269 Section 90.803(2), Florida Statutes (2002), provides for the admission of an available declarant's out-of-court "statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement cau...
CopyCited 9 times | Published | Supreme Court of Florida | 2008 WL 1901674
...formed substantially in accordance with approved methods, that is, by a person trained and qualified to conduct it, on an approved machine that has been tested and inspected. See State v. Donaldson,
579 So.2d 728 (Fla.1991). Sections
316.1934(5) and
90.803(8), Florida Statutes (2007), provide for the introduction of affidavits containing the necessary evidentiary foundation as a public records exception to the hearsay rule....
...uch instrument. Id. The statute also provides that the law enforcement agency shall provide a form for the affidavit and that the person tested may subpoena the person who administered the test as an adverse witness at a civil or criminal trial. Id. Section 90.803(8), Florida Statutes (2007), is the public records and reports exception to the hearsay rule....
...fficer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s.
316.1934 or s.
327.354. §
90.803(8), Fla. Stat. An item of evidence that meets the requirements of this statutory provision may however be excludable for other reasons. The introductory language to section
90.803 states that items satisfying the requirements of this exception are "not inadmissible" merely because the evidence is hearsay....
...5th DCA 2005), the defendant was convicted for trafficking in cocaine. On appeal, the defendant argued that the trial court erred in introducing an FDLE lab report, which indicated that the substance tested was cocaine, through the records custodian, pursuant to section 90.803(6), Florida Statutes....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2007 WL 675354
...At trial, appellant objected to the report's introduction at trial on grounds of "relevancy, foundation and hearsay." On appeal, appellant more specifically argues that the state failed to establish the predicate for a business records exception to the hearsay rule, section 90.803(6)(a), Florida Statutes, because it did not show that the supplier of the information contained in the report was acting within the course of the given business which generated the record, and the victim, who supplied the information, was not acting on behalf of the West Palm Beach Police Department....
...During the trial, the state moved to admit into evidence the hospital records containing the results of the defendant's blood alcohol test. The defendant objected on the grounds of relevancy and lack of foundation. On appeal, he argued that the state did not lay a proper foundation for admission of the records under section 90.803(6), because it failed to establish that the records were made "by, or from information transmitted by, a person with knowledge" of the matter recorded....
...State,
261 So.2d 497 (Fla.1972); Neeley v. State,
883 So.2d 861, 864 (Fla. 1st DCA 2004)); see also King v. State,
590 So.2d 1032, 1033 (Fla. 1st DCA 1991) (finding the defendant's hearsay objection sufficient where the state failed to satisfy the foundational requirements of section
90.803(6) for admission of a computer printout at sentencing)....
CopyCited 9 times | Published | Florida 1st District Court of Appeal
...He raises two issues for our consideration, only one of which merits discussion. Appellant contends that the trial court erred in admitting in evidence the child's out-of-court account of the sexual incident where the state failed to adequately comply with the notice requirement in section 90.803(23), Florida Statutes (1985)....
...raced himself over her and touched her legs with his male part. On the same date as the trial was scheduled to commence, appellant filed a motion to exclude the hearsay testimony on the ground that the state's notice was deficient under the statute, section 90.803(23), in that it failed "to include the circumstances surrounding the statements which indicate their reliability and any other particulars necessary to provide full disclosure of the statements." Just before commencement of the trial,...
...ld might be able to adequately relate what had occurred to her. There doesn't appear to be any evidence of coaching on the videotaped deposition. It seems to have been taken precaution. [sic] I think both statements for those reasons are admissible. Section 90.803(23), Florida Statutes (1985), creates a limited exception to the hearsay rule for reliable statements of victimized children eleven or less who describe the act of abuse. Before the child's extra-judicial statements may be used, however, the prosecutor must inform the defendant of his intention to offer the statements at trial. Section 90.803(23)(b) states: In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial....
...For purposes of the above subsection, statements made to a Child Protection Team member are not presumed to be reliable. *114 Salter v. State,
500 So.2d 184 (Fla. 1st DCA 1986). In addition, the notice completely lacks any mention of the content of the child's statement to the CPT counselor. Section
90.803(23)(b) does not specify whether, or under what circumstances, the statement may still be admitted despite the prosecution's failure to comply with the notice requirement, as happened here....
...ant an opportunity to meet the evidence, we are persuaded that Richardson and its progeny are relevant. We, therefore, hold that a defendant is entitled to a "Richardson -type" inquiry when the state fails to comply with the notice requirement under section 90.803(23)(b)....
...on inquiry in this context, a leading commentator on Florida evidence has indicated that such an inquiry is appropriate and should be conducted. C. Ehrhardt, Florida Evidence at p. 141 (2d ed. 1984). We observe also that the notice requirement under section 90.803(23) is similar to that under Rules 803(24) and 804(b)5 of the Federal Rules of Evidence....
...Although the state included in paragraph 2 of its notice the reference to the statement made by the victim to her mother, such inclusion in the notice was gratuitous because it is abundantly clear from the record that such statement qualified as an excited utterance under Section 90.803(2), Florida Statutes, as to which the notice requirements of Section 90.803(23) are not applicable....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 11 Fla. L. Weekly 1637, 1986 Fla. App. LEXIS 8959
...trier of fact and should not have been summarily resolved in favor of either party. Crislip. We, accordingly, reverse and remand for proceedings consistent herewith. GRIMES, A.C.J., and FRANK, J., concur. NOTES [1] This statement was admissible. See § 90.803(18), Fla....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 2004 WL 1635615
...[5] *173 On remand, the trial court must sever the offense for felon in possession of a firearm from the remaining offenses. II. ADMITTING 911 TAPE AS EXCITED UTTERANCE Mr. Tucker also argues that the trial court erred when it admitted the 911 recording as an excited utterance. [6] We agree. Section 90.803(2), Florida Statutes (2002), permits a party to introduce into evidence an out-of-court statement admitted for the truth of that statement when it is an excited utterance "relating to a startling event or condition made while the decla...
...he statement must be made while the person is under the stress of excitement caused by the event. See State v. Jano,
524 So.2d 660, 661 (Fla.1988). The fact that a call is placed on a 911 line does not, standing alone, qualify it for admission under section
90.803....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 354
...1985), and the record reflects no impeachment whatever of Campbell's direct testimony. Prior consistent statements may also be admissible under certain exceptions to the hearsay rule, Ehrhardt, Florida Evidence, 2d ed., § 801.8, but no exception is applicable in this case. Section 90.803(5), Florida Statutes (1983), provides that "a memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable him to testify fully and accurately, shown to have been ma...
...The report from which the officer testified as to what Campbell told him was not "made by the witness," however, but was a synopsis made by the officer. Police reports themselves are specifically excluded from the exception for public records and reports, Section 90.803(8), Florida Statutes (1983)....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1999 WL 89933
...Concluding that the trial court correctly denied appellant's motion, we affirm. The state filed an information charging appellant with the commission of a lewd or lascivious act upon a child. It subsequently served appellant with a notice, pursuant to section
90.803(23)(b) of the Florida Evidence Code, stating that it intended to offer at trial the alleged child victim's out-of-court statements; and a notice, pursuant to section
90.404(2)(b) of the Florida Evidence Code, stating that it intended to offer at trial similar fact evidence of another crime, wrong or act. Appellant responded by filing two motions in limine. In the first, he argued that the alleged child victim was incompetent to testify at trial, and that the out-of-court statements could not meet the reliability requirement set out in section
90.803(23)(a)1 of the Florida Evidence Code....
...The trial court later ruled, after an evidentiary hearing, that the alleged child victim would not be competent to testify at trial. At a subsequent hearing on the admissibility of the alleged child victim's out-of-court statements, appellant again argued that the statements should be excluded pursuant to section 90.803(23)(a)1 because they were not sufficiently reliable. Appellant also argued that the similar fact evidence could not be used to satisfy the corroboration requirement imposed by section 90.803(23)(a)2b when the child witness is unavailable because it did not corroborate the offense charged. The trial court subsequently denied appellant's motion to preclude the use of the out-of-court statements at trial, holding that the statements were sufficiently reliable to satisfy section 90.803(23)(a)1, and that the similar fact evidence could be used to satisfy the corroboration requirement imposed by section 90.803(23)(a)2 b....
...Appellant then pled no contest to the reduced charge of an attempt to commit a lewd or lascivious act, reserving the right to seek review of the order denying his motion to exclude the out-of-court statements *790 at trial, which order the state agreed was dispositive. This appeal follows. To the extent relevant, section 90.803(23)(a) of the Florida Evidence Code reads: (a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim wit...
...The trial court concluded that the alleged child victim was unavailable to testify at trial. Therefore, the child's out-of-court statements would be admissible at trial only if (1) the trial court found that they satisfied the reliability requirement of section
90.803(23)(a)1 and (2) there was "other corroborative evidence of the abuse or offense," as required by section
90.803(23)(a)2 b. In State v. Townsend,
635 So.2d 949 (Fla.1994), our supreme court held that trial courts must follow a two-step approach to determine the admissibility of out-of-court statements pursuant to section
90.803(23) when a child victim is unavailable to testify at trial: First, the trial judge must determine whether the hearsay statement is reliable and from a trustworthy source without regard to corroborating evidence....
...ability and trustworthiness was an abuse of discretion. Once it had determined that the statements were reliable, the trial court was next required to determine whether there was "other corroborative evidence of the abuse or offense." Fla. Evid.Code § 90.803(23)(a)2 b....
...The trial court concluded that such evidence existed in the form of the similar fact evidence. Appellant's position is that such similar fact evidence of other crimes, wrongs or acts can never qualify as "other corroborative evidence of the abuse or offense" because a plain reading of section
90.803(23) reveals that "the corroboration must relate to the crime charged, not some other incident." Appellant argues, further, that, to the extent section
90.803(23) is subject *791 to differing constructions, section
775.021(1), Florida Statutes (1997), requires that we strictly construe it, in a light most favorable to him. We find appellant's arguments unpersuasive. Section
775.021(1) has no bearing upon the construction of section
90.803(23) for the simple reason that, by its terms, section
775.021(1) applies only to statutes which define criminal offenses, and section
90.803(23) is not such a statute....
...Additional evidence of a different character to the same point." Black's Law Dictionary 344 (6th ed.1990). The two leading legal encyclopedias are to the same effect. 32A C.J.S. Evidence § 1302 (1996); 81 Am.Jur.2d Witnesses §§ 1001, 1002 (1992). We can think of no good reason to ascribe to the phrase as used in section 90.803(23)(a)2 b a meaning different from that generally recognized in legal circles....
...criminal sexual battery prosecutions. State v. Rawls,
649 So.2d 1350 (Fla.1994). Such being the case, it seems to us logical to assume that such evidence might also be used to corroborate the out-of-court statements of a child victim, as required by section
90.803(23), when the child is unavailable to testify at trial....
...However, we find persuasive the decision in State v. Jones, 112 Wash.2d 488, 772 P.2d 496 (1989). There, the court held that similar fact evidence could qualify as "corroborative evidence," pursuant to a Washington statute which is substantively indistinguishable from section 90.803(23), to corroborate out-of-court statements of child victims who are unavailable to testify at trial....
...n such a case should be subject to an abuse of discretion standard. Id. at 500. Based upon the foregoing analysis, we hold that similar fact evidence may be used to satisfy the requirement of "other corroborative evidence of the abuse or offense" in section 90.803(23)(a)2 b....
...the state in permitting greater use of child victim hearsay and that of the defendant in preventing an unacceptable risk of an erroneous conviction. A trial court's decision whether to consider similar fact evidence as corroborative for purposes of section 90.803(23)(a)2 b will be subject to review pursuant to an abuse of discretion standard....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 1998 WL 52249
...ossession, and that the value of the missing goods as notated by Woolworth on its bill of lading was $935.88. While the business-records exception to the hearsay rule allows the admission of "[a] memorandum, report, record, or data compilation," see § 90.803(6)(a), Fla....
...Thus, the trial court erred in allowing the State to present such testimony. Since the bill of lading was never introduced into evidence, it is unnecessary to decide whether the GPS witnesses could have laid the requisite foundation for its admission. See § 90.803(6)(a), Fla....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 20401, 2009 WL 5126368
...It was also cumulative to statements the victim made to Detective Scopa and Officer McClaskey shortly after the attack. We hold that these statements, which came in through the officers' testimonies, were properly admitted into evidence as excited utterances. See id.; see also § 90.803(2), Fla....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 2006 WL 2482442
...that the statement would be available for use at a later trial. Id. (emphasis added). While the FDLE report at issue in the instant case may meet the definition of a business record under the Florida statute permitting admission of such records, see section 90.803(6), Florida Statutes (2003), an issue we do not address, the report obviously was prepared for litigation purposes....
...*1194 Although the Supreme Court did not conclusively define "testimonial," nothing in Crawford suggests that the definition would be stretched to include laboratory reports. In fact, the Court surmised in dicta that business records likely would not be included. Id. at 56,
124 S.Ct. 1354. Section
90.803(6), Florida Statutes (2003), defines a business record as (a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmit...
...90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term "business" as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Thus, section 90.803(6) clearly includes the FDLE laboratory report....
...Thus, I would find the FDLE laboratory report is admissible as a business record. The majority opinion notes that "[w]hile the FDLE report at issue . . . may meet the definition of a business record under the Florida statute permitting admission of such records, see section 90.803(6), Florida Statutes (2003), an issue we do not address, the report obviously was prepared for litigation purposes." Because I agree that the FDLE report meets the statutory definition of a business record, I would follow this court's holding in Davis v....
...Further, I believe that the Davis and Russell decisions remain valid unless or until the United States Supreme Court announces a broader rule than it did in Crawford. The majority holds that the FDLE report does not qualify as a business record simply because its production is triggered by an arrest. However, section 90.803(6) does not exclude reports produced by FDLE or other law enforcement authorities....
...3d DCA 1985), the Third District discussed the reason that an accident report, prepared by a premises owner after a slip and fall, does not qualify as a business record: Not all records regularly made by a business are admissible; a requirement of minimum reliability of a record is contained in Section 90.803(6) [Florida Statutes] which states that when the `sources of information or other circumstances show lack of trustworthiness' business records are not admissible....
...Accordingly, I would affirm Appellant's conviction and certify conflict with Johnson. NOTES [1] Appellant also argues on appeal that the lab report in question was not a "business record," and accordingly was not properly admitted under the business record exception to the hearsay rule, relying on amendments to section
90.803 and section
90.902, Florida Statutes, enacted by chapter 2003-259, Laws of Florida, as well as Baber v....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 2007 WL 1201597
...ivious molestation. The trial court sentenced Elwell to thirty years' imprisonment as a habitual violent felony offender. II. Argument on Appeal On appeal, Elwell argues that the trial court erred in failing to make the specific findings required by section 90.803(23), Florida Statutes (2003), [1] before admitting the child-hearsay statements into evidence....
...o correct it at an early stage of the proceedings." Harrell v. State,
894 So.2d 935, 940 (Fla. 2005) (alterations in original) (citations omitted). B. The Case Law Regarding the Preservation of Objections Concerning the Sufficiency of Findings Under Section
90.803(23) This court has held that a defendant must object to the sufficiency of the trial court's findings regarding the admissibility of child-hearsay statements in order to raise the legal error on appeal. See Poukner v. State,
556 So.2d 1231, 1232 (Fla. 2d DCA 1990) ("Poukner contends that the trial court erred in admitting the hearsay statements of the child victims because [it] failed to make the specific findings required in section
90.803(23), Florida Statutes (1985)....
...State,
632 So.2d 1372 (Fla.1994), Hopkins challenged both the sufficiency of the factual findings under section
92.54, Florida Statutes (1989) (the statute allowing a child to testify outside of the courtroom after the trial court has made specific findings of fact) and the sufficiency of the factual findings under section
90.803(23), Florida Statutes (1989)....
...The court concluded that "defense counsel's `confrontation *107 rights' objection necessarily called into question whether the statutory procedures had been followed" and that the issue was preserved for appeal. Id. at 1375-76. As for the findings under section
90.803(23), Hopkins objected at the close of the pretrial hearing "to the admissibility of the hearsay statements, arguing that there was no showing of reliability."
632 So.2d at 1376....
...of the judge's findings as to that reliability. Id. (emphasis added). After Hopkins, the Florida Supreme Court decided State v. Townsend,
635 So.2d 949 (Fla.1994). In Townsend, the court held that the trial court did not satisfy the requirements of section
90.803(23) because the trial court did not provide an explanation or factual findings to support its conclusion that the child-hearsay statements were reliable....
...denied the fundamental right to due process and the right to a fair trial. Id. at 959-60 (citations omitted). The supreme court cited Jones v. State,
610 So.2d 105, 105-06 (Fla. 3d DCA 1992), which held that the argument that factual findings under section
90.803(23) "should have been made in more detail" was "not preserved for appellate review, because no contemporaneous objection was made to the sufficiency of the trial court's findings." Jones, in turn, cited this court's decisions in Stone,
547 So.2d 657, and Poukner,
556 So.2d 1231....
...We hold that appellant adequately preserved this issue for appellate review. Id. (emphasis added). In In re R.L.R.,
647 So.2d 251, 252 (Fla. 1st DCA 1995), the father objected during an adjudicatory hearing on a petition for termination of parental rights to the admission of child-hearsay statements on the basis of section
90.803(23). The trial court reserved ruling on the statements and later ruled them to be admissible. On appeal, the father challenged the trial court's findings as insufficient under section
90.803(23)....
...nt's counsel went to the legal sufficiency of the trial court's findings." Id. In Womack v. State,
855 So.2d 1236, 1237 (Fla. 1st DCA 2003), the parties agreed "that the trial court did not make specific findings of fact on the record as required by section
90.803(23)(c)" but the State argued that "there is not reversible error because ....
...ble opportunity following the alleged incident" and "the motive or lack thereof to fabricate the statement"). Prior to raising the issue in this appeal, Elwell never raised any objection concerning the sufficiency of the trial court's findings under section 90.803(23)....
...confrontation clause objection encompassed the trial court's lack of findings as required under the statutory procedures intended to protect the defendant's right to confrontation.
632 So.2d at 1375. The court then applied this same reasoning to the section
90.803(23) issue. The court noted that "[f]ailure to make specific findings" under section
90.803(23) "implicates the defendant's constitutional right to confrontation" and that "the constitutional right to face-to-face confrontation is involved in both evidentiary issues raised in this case." Id....
...We also note that Hopkins was decided prior to the adoption of section
924.051, with its exacting requirements regarding the preservation of error. IV. Conclusion Elwell did not properly preserve for appeal his argument that the trial court failed to make specific factual findings as required by section
90.803(23)....
...tatements was preserved for review. Nevertheless, having reviewed the testimony presented at trial, I must conclude that the trial court's error in admitting the child-hearsay statement without first making sufficient findings of fact as required by section 90.803(23), Florida Statutes (2003), is harmless beyond a reasonable doubt....
...In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate. . . . § 90.803(23)(a). The trial court is required to "make specific findings of fact, on the record, as to the basis for its ruling." § 90.803(23)(c).
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 1991 WL 45209
...xamine same when made. C. Erhardt, Florida Evidence § 803, at 467 (2d ed. 1984); McCormick on Evidence § 253, at 753 (3d ed. 1984). One of these established exceptions is that out-of-court admissions of a party opponent are admissible in evidence, § 90.803(18), Fla....
...Graham, Handbook of Florida Evidence § 803.180, at 688 (1987); McCormick on Evidence § 262 (3d ed. 1984); admissions by a party opponent, in turn, include "[a] statement by [a party's] agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship." § 90.803(18)(d), Fla....
...cidents and filing reports thereon; contrary to Dade County's argument, such statement was therefore made by Dade County's employee "concerning a matter within the scope of [his] employment ... during the existence of the [employment] relationship." § 90.803(18)(d), Fla....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 1995 WL 552353
...The police were then called and the child gave a statement to the detective. Many months later, the victim described what had occurred to the counselor. Appellant initially asserts that the trial court erred by not strictly following the findings requirements for admitting child hearsay statements under section 90.803, Florida Statutes....
...Additionally, even were the issue preserved, we note that the record is silent as to what factors were considered by the court in overruling the objection. Nothing in Pardo requires the court to sua sponte resolve all potential
90.403 issues once it has been determined, under section
90.803(23)(a), that *781 the hearsay rule does not preclude consideration of the statements. To the contrary, the court in Pardo quoted approvingly from the language in the district court's opinion in that case that once it is determined that testimony is allowed under
90.803(23)(a), the statements remain subject, like any other evidence, to analysis under section
90.403....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2005 WL 2219023
...the contrary is simply a misapplication of the law to the facts. The State argues that the use of the CPT statement in this case satisfies Crawford because it complies with State v. Townsend,
635 So.2d 949 (Fla.1994), which held that compliance with section
90.803(23), as modified in Townsend, satisfied the Confrontation Clause....
...And the problem with Roberts is that its rationale was explicitly overruled *907 in Crawford. In the wake of Crawford there isn't much left of Roberts. Both Townsend and Perez were founded on the rationale of Roberts, which was explicitly disapproved by Crawford. If that is the foundation for holding section 90.803(23) in compliance with the Confrontation Clause, it is very difficult to see how this hearsay exception is viable any longer....
..., this protection would cease to have the certainty and categorical effect that Crawford holds it was designed to have. In addition to Crawford, defendant also argues that the child victim was not legally unavailable to testify within the meaning of section 90.803(23)....
...ce clearly. Nothing in the psychologist's opinion testimony indicates that he considered the child's own testimony as to her ability to testify at trial. She was also 13 at the time of trial, and thus she no longer qualified for unavailability under section 90.803(23). Under section 90.803(23)(a)(2)(b), a trial judge may find that a child is unavailable as a witness because the "child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm." This subjective method of determining unavailability does not survive Crawford....
...have the child testify by closed-circuit television. The defense objected. After having the child psychologically evaluated, the court found the child was unavailable and her unsworn statement to the social worker met the reliability requirements of section 90.803(23), Florida Statutes (2001)....
...And that cross-examination of the child, had it been possible without traumatizing her, would not have yielded any concessions by her that would have lessened or significantly altered her statement. Having previously determined the videotaped interview met the requirements of section 90.803(23), Florida Statutes (2001), the court admitted it....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2001 WL 1338016
...A prosecutor does not violate her obligation to seek justice by arguing the state's case with passion and conviction. On the remaining issue, appellant did not preserve his objections to the quality of the trial court's factual findings required by section 90.803(23), Florida Statutes (2000)....
CopyCited 8 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 570
...in evidence to prove the truth of the matter asserted." §
90.801(1)(c), Fla. Stat. (1981). The statement in the present case clearly fits the statutory definition of hearsay, although we find that it was admissible nonetheless as an admission under section
90.803(18)(c), Florida Statutes (1981), hearsay exception: (18) ADMISSION....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 2001 WL 1439693
...report, the report was not subject to the business record exception. See Legree v. State,
739 So.2d 616, 617 (Fla. 1st DCA 1999) (while hearsay is admissible at a revocation hearing, it cannot be the sole basis for a finding of violation); see also §
90.803(6), Fla....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1993 WL 462759
...g the court's finding that they were self-serving, citing Coxwell v. State,
361 So.2d 148 (Fla. 1978), and Coco v. State,
62 So.2d 892 (Fla. 1953). He also contends that the statements should have been admitted during the defense case under sections
90.803(1),
90.803(2), or
90.803(3), Florida Statutes, because his state of mind was at issue, his statements were "excited utterance[s] relating to a startling event or condition" and were made while he was "under the stress of excitement caused by the event or condition," a...
...statements of the defendant that did not fit any of the exceptions to the hearsay rule. It asserts that the after-the-fact statements of memory or belief ("I didn't hit him," "I shot over his head," and "I was trying to scare him") are prohibited by section 90.803(3)(b), that the latter statement contradicts the defense of accidental discharge of the gun by indicating the purpose for firing the gun, and that even if believed, the statement would preclude the jury from convicting of anything less than third degree murder, citing Hooker v....
...We conclude that the trial court erred in excluding the testimony of witnesses to the shooting that described appellant Alexander's exclamations and actions immediately after firing the shot that killed the victim. This testimony was admissible under the res gestae rule now codified in sections 90.803(1), (2), and (3), Florida Statutes (1991), which define the conditions for admissibility of (1) spontaneous statements, (2) excited utterances, and (3) then existing mental and emotional conditions of the declarant....
...Alexander's statements during the defense case. The three exceptions to the hearsay rule upon which Alexander relied are derived from the old res gestae exception. The majority's suggestion that the res gestae rule remains viable in codified form in section 90.803(1), (2), and (3), Florida Statutes (1991), ignores the substantial jurisprudence of this state and elsewhere discussed at length in Law Revision Council Note-1976 to the annotated statutes....
...rent trustworthiness of this evidence. This is nothing more than this appellate court making a finding of fact about trustworthiness which is inconsistent with the finding of fact made by the trial judge (the fact finder) on the same issue. Sections 90.803(1) (spontaneous statements) and 90.803(3) (then existing mental, emotional, or physical condition) specifically provide that the statement is not admissible when it is "made under circumstances that indicate its lack of trustworthiness." The trial judge did not abuse her discretion...
...lack of trustworthiness (the trial judge found that the self-serving statements were not spontaneous, but were made in response to Sims' question, and that they indicated Alexander's state of mind after the shooting, which was not at issue). As for section 90.803(2) (excited utterances), I note that in Overton v....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 17158, 2010 WL 4483488
...he amounts due and the default, are in any way incorrect. For the first time on appeal, Freemon contends that Bailey's affidavit was insufficient to satisfy the requirements for admissibility under the business records exception to the hearsay rule, section 90.803(6), Florida Statutes....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 1996 WL 279224
...ot" flows from the return of service. Id. The defendant, of course, is permitted to introduce evidence to rebut the basic and elemental facts. The return of service itself, while hearsay, is admissible in evidence under the public records exception, section 90.803(8), Florida Statutes, and United States v....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2006 WL 782483
...5th DCA 2002) (holding that a certified copy of defendant's entire driving record showing his classification as an habitual traffic offender, his numerous convictions, and the revocation of his driving license is a public record and a report of a public office or agency and is excepted from the hearsay rule under section 90.803(8), Florida Statutes [3] ). The certified copy of Sproule's driving record was properly admitted as a hearsay exception under section 90.803(8), Florida Statutes....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1993 WL 154285
...risdiction to impose them at the original sentencing hearing. In that regard, we observe that, contrary to appellant's challenge, the state's affidavit setting forth the costs of prosecution falls under the exception to the hearsay rule contained in section 90.803(8), Florida Statutes (1991), and was properly admitted as a statement reduced to writing setting forth the activities of the office....
CopyCited 8 times | Published | Florida 5th District Court of Appeal
...First, the plaintiff could have submitted the affidavit of the technician who actually performed the tests. Second, she could have submitted the affidavit of the custodian of the blood test report, establishing *1197 the foundation by which the report itself could have been admissible as a hearsay exception under section 90.803(6), Florida Statutes (1981). Section 90.803(6) makes admissible: (a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if k...
...ssociation for Clinical Histocompatibility Testing and the American Association of Blood Banks and that the conclusions were determined independently by the undersigned and are correct as reported. Neither the notation nor the affidavit reflects, as 90.803(6) requires, that the results were compiled in the course of regularly conducted activity, by someone or from information transmitted by someone with knowledge, that the practice of the "business" activity was to keep such records and that the...
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1993 WL 88631
...verdict. State v. DiGuilio,
491 So.2d 1129, 1135 (Fla. 1986). Accordingly, the error cannot be deemed harmless and a new trial is necessary. Crumley v. State,
534 So.2d 909, 910 (Fla. 1st DCA 1988). The state has cited numerous decisions relying on section
90.803(3), Florida Statutes (1989), the so-called state-of-mind hearsay exception, for the proposition that the seller's statement should not have been admitted to show Appellant's state of mind....
...Because the excluded testimony is material and relevant, and is not hearsay, our decisions such as Bailey v. State,
419 So.2d 721 (Fla. 1st DCA 1982), and Reed v. State,
438 So.2d 169 (Fla. 1st DCA 1983), addressing the factually and legally distinguishable situations involving section
90.803(3) are not pertinent and merit no further discussion....
CopyCited 8 times | Published | Supreme Court of Florida | 1995 WL 121612
...She said, oh my God. Q. And what did she do? ... ... . A. She started crying. Layman claims that Hunt's statements were inadmissible hearsay. We disagree. The "oh my God" statement was admissible under the excited utterance exception to the hearsay rule. See § 90.803(2), Fla....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 1995 WL 340212
...t's independent acts that did not further the conspiracy. When Barrett spoke to Campbell after the murders, any conspiracy had ended; the statement was not the admission of a co-conspirator during the course and in furtherance of the conspiracy. See § 90.803(18)(e), Fla....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 1994 Fla. App. LEXIS 5402, 1994 WL 244162
...contract for sale of motor vehicles, and had violated chapter 319, Florida Statutes. We disagree. Dealers was not a party to that stipulation and is not bound by it. Although Z-World's statements in the stipulation are admissions as to Z-World, see § 90.803(18), Fla....
CopyCited 8 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 386, 2013 Fla. LEXIS 1163, 2013 WL 2436218
preserved for appellate review.” 41 So.3d at 939; see §
90.803(5), Fla. Stat. (2008) (governing admission of
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 9119, 2010 WL 2507051
...: *880 A. Hearsay A court-appointed receiver or trustee is ordinarily a successor records custodian and may establish the necessary foundation for the admission of the defunct entity's records of regularly conducted business activity for purposes of section 90.803(6) and (7), Florida Statutes (2009)....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 11571, 40 Fla. L. Weekly Fed. D 1813
business records hearsay exception set forth in section
90.803(6), Florida Statutes (2015). It is well settled
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 1989 WL 147384
...ubstances seized at the time of the arrests. The lab tests were not the only evidence of the violations in Young and Hayes. Lab tests or other kinds of hearsay evidence may be admissible pursuant to various exceptions to the hearsay rule. See, e.g., § 90.803(6), Fla....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2002 WL 31729077
...In the statement Nappo allegedly admitted he committed the offense for which Sampson was being tried, while Sampson was passed out in the backseat of a car parked away from the crime scene. Nappo testified at trial and admitted to making that statement. Regardless of whether or not the tape was admissible under section 90.803(18) (admission against interest), it was merely cumulative to Nappo's trial testimony and thus if error occurred, it was not prejudicial....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 73
..., and their admission seriously prejudiced Saul's case. The statements that Saul was injured by a fall caused by tripping on a carpet or rug are found in the history portion of the doctors' reports. The admissibility of such reports is controlled by section 90.803(4), Florida Statutes (1985), which excludes the following from the hearsay rule: (4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT....
...age came from? A I don't know anything about the injury. It doesn't interest me. I wasn't there. Q I understand you have no personal knowledge of the injury or how it occurred. A No. Appellee contends that, if the statements are not admissible under section 90.803(4), they are admissible under the business records exception to the hearsay rule codified in section 90.803(6), Florida Statutes (1985)....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1988 WL 31711
...Carroll,
438 So.2d 31, 35 (Fla. 5th DCA 1983); Giddens v. State,
404 So.2d 163, 164 (Fla. 2d DCA 1981); Ehrhardt, Florida Evidence, § 608.1 (2d ed. 1984). Although self-serving hearsay statements are inadmissible, an out-of-court admission by the accused is admissible under section
90.803(18), Florida Statutes, when offered by an adverse party....
...During the second interview, he again denied the sexual battery, but admitted that he struck his daughter with a shoe and with his fist. Since the state presented independent proof that a beating was inflicted on the daughter, and that some other person was responsible, this second statement was properly admitted pursuant to section 90.803(18), as a confession of criminal activity to a police officer....
...3d DCA), review dismissed,
436 So.2d 100 (Fla. 1983). As admissions, the statements may be introduced during the state's case-in-chief as evidence from which guilt may be inferred. See generally, Smith v. State, supra; Ehrhardt, Florida Evidence, § 803.18 (2d ed. 1984). Section
90.803(18)(a) recognizes as an exception to the rule against inadmissible hearsay, admissions made by a party in his individual or representative capacity....
...We agree that in most instances, the defendant, rather than the state, is the person who attempts to introduce out-of-court exculpatory statements. We disagree, however, with the state's argument that such declarations are automatically admissible under section 90.803(18), if offered by the state....
...Furthermore, the relevancy of sought-after evidence must be demonstrated by the party seeking its admission. Hitchcock v. State,
413 So.2d 741 (Fla.), cert. denied,
459 U.S. 960,
103 S.Ct. 274,
74 L.Ed.2d 213 (1982). Because the state has not shown the relevancy of appellant's unrefuted exculpatory statement, the section
90.803(18) exception does not apply....
...In this case unlike the situation involved in Smith appellant blanketly denied the allegations of sexual battery and child abuse during the first interview with the police chief. During the second interview, appellant again denied the sexual battery accusation, but admitted striking his daughter. By its terms, the section 90.803(18) exception to the hearsay rule contemplates admissibility of statements "offered against a party." Absent proof of their falsity, the self-serving nature of a defendant's exculpatory statements are not admissions from which guilt can be inferred. It follows that unrefuted denials of criminal conduct, such as those made in the instant case, are not relevant to the state's case in a criminal prosecution, hence not admissible under the section 90.803(18) exception....
...mission. Our opinion observed that because the statement made by appellant during the second interview was in the nature of a confession, and the state had presented independent proof of the same, the confession *67 was properly admitted pursuant to section 90.803(18)....
...tement was error, albeit harmless, and deny the state's motion for rehearing. The motion for clarification is granted to the extent that our original opinion is modified by the foregoing discussion. ERVIN, JOANOS and BARFIELD, JJ., concur. NOTES [1] § 90.803(18)(a), Fla....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1989 WL 34577
...pdaughter. Although the circumstances provide sufficient safeguards of reliability as to the challenged out-of-court statements made by appellant's stepdaughter, the court did not make the necessary findings for such testimony to be admissible under section 90.803(23), Florida Statutes. Statements *735 which were made for the purpose of medical diagnosis or treatment were nevertheless admissible under section 90.803(4), Florida Statutes....
...And both these and the remainder of the challenged statements were merely cumulative evidence, generally reiterating the substance of testimony which the victims presented to the jury. In the context of this case the court's failure to comply with the procedural requirements of section 90.803(23) was harmless....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1994 WL 169467
...etective Butler's testimony, the defense objected when it became apparent that the state was attempting to elicit hearsay statements of what the niece had told him. The defense argued that the state had failed to give the required notice pursuant to section 90.803(23)(b), Florida Statutes (1991), which provides a hearsay exception for a statement by a child victim....
...s that it was reversible error to allow Detective Butler to testify to the niece's hearsay statements. Butler related what the niece had told him regarding the charged offenses. The state failed to file a notice of intent to introduce the hearsay as section 90.803(23)(b) *260 requires. In addition, the trial court made no specific findings of fact regarding the reliability of the statements. § 90.803(23)(c), Fla....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 2008 Fla. App. LEXIS 5506, 2008 WL 1733673
...to rely on such commercial publications if, in the opinion of the court, the sources of information and method of preparation were such as to justify their admission (information generally used and relied upon by persons in particular occupations). § 90.803(17), Fla....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 12 Fla. L. Weekly 1031
..., based on statements of other unidentified persons, which explained the operating room activities while the patient was in acute distress and effectively assigned fault to a third physician, was not admissible as an admission against self-interest, section 90.803(18), Florida Statutes (1985), but could be used for impeachment purposes at trial....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal
...In the absence of an applicable exception, hearsay evidence is inadmissible. Section
90.802, Florida Statutes (1981). On appeal, the state has argued that the rebuttal testimony was properly admitted into evidence to show Hunt's reputation, as to character, in the community. Section
90.803(21), Florida Statutes (1981)....
...Section
90.802, Florida Statutes (1981). See Rose v. Peters,
82 So.2d 585 (Fla. 1955). Hunt has asserted that the state of mind exception to the hearsay rule is the only exception which could conceivably apply to allow the testimony into evidence. Section
90.803(3), Florida Statutes (1981)....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2001 WL 1013594
...ing the difficulty a child would likely have in reporting a sexual offense. In another context, not far removed from this one, the Evidence Code expressly allows the introduction of a prior consistent statement by a child victim of sexual abuse. See § 90.803(23), Fla....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1995 WL 412367
...A party must make a proper and timely objection at trial in order to preserve the point for appeal, as we have long held. [7] In this case, a proper objection would have been that the state failed to provide a proper predicate for admission of the credit report as a business record pursuant to section 90.803(6) of the Florida Evidence Code. Hearsay can be admissible under numerous exceptions, one of which is the business records exception. In order to be admissible as a business record pursuant to section 90.803(6), the record must be shown to have been: 1....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2008 WL 4681157
...ds contained. Rather, Mr. Box argues only that his right of confrontation was violated. As we hold that the right of confrontation does not apply to restitution hearings, we affirm in all respects. AFFIRMED. EVANDER and COHEN, JJ., concur. NOTES [1] § 90.803(8), Fla....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 1992 WL 295437
...PER CURIAM. Norman Seaman appeals his convictions and sentences on two counts of capital sexual battery. We affirm. Defendant first contends that the trial court erred by admitting the child victim's hearsay statements into evidence pursuant to subsection 90.803(23), Florida Statutes (1989)....
...After a lengthy evidentiary hearing, the trial court found that the child victim, who was approximately five and one-half years old at the time of the offenses, was unavailable because of "a substantial likelihood of severe emotional or mental harm... ." Id. § 90.803(23)(a)(2)(b). The trial court found the child's hearsay statements were reliable, see id., § 90.803(23)(a)(1), and ruled that the statements were admissible at trial. Defendant argues that the trial court did not make sufficiently specific findings of reliability as required by paragraph 90.803(23)(a)(1). We disagree. The findings were dictated by the trial court into the record as required, see id. § 90.803(23)(c), and are, in our view, sufficiently particularized. [1] We reject defendant's argument that the findings were "boilerplate." Where, as here, the statute expressly enumerates various factors which the trial court may consider, see id. § 90.803(23)(a)(1), it is entirely appropriate for *73 the trial court to discuss those factors....
...ments made for purposes of obtaining medical diagnosis or treatment. [3] At the hearing on the State's motion to admit the child hearsay statements, the defense also argued in substance that the child witness was not "unavailable" for purposes of subsection
90.803(23), Florida Statutes (1989); defendant contended that the child could testify by closed circuit television pursuant to the procedure of section
92.54, Florida Statutes (1989)....
...It is clear, therefore, that the expert's opinion regarding substantial likelihood of severe emotional harm included the in-court as well as closed circuit options, and there was substantial competent evidence supporting the trial court's finding that the child was unavailable within the meaning of subsection 90.803(23).
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1990 WL 175056
...the presence of a child, in violation of section
800.04, Florida Statutes. The appellant raises three issues on appeal, two of which merit discussion: 1) Whether the trial court erred by allowing the use of hearsay statements of child victims under section
90.803(23), Florida Statutes, without considering indicia of unreliability as well as indicia of reliability; and 2) whether there was sufficient evidence to support the element of penetration in regard to two counts of sexual battery by vaginal digital penetration. We affirm. On appeal, Davis argues that while the trial court enumerated the indicia of reliability of the hearsay statements as provided in section
90.803(23), Florida Statutes, the court did not address the indications of unreliability raised by the defense. Section
90.803(23)(c), Florida Statutes, requires only that "the court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection." There is no statutory requirement that findings necessarily reflect a balance of indicia of unreliability with indicia of reliability....
...with a pretty much consistent pattern insofar as detail, the court is satisfied they are sufficiently reliable to be admitted. The findings of the court regarding the reliability of the hearsay testimony appear to meet the statutory requirements of section 90.803(23), Florida Statutes: "In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reli...
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2007 WL 1555737
...Greg King did not have personal knowledge of the value of the ruined items, but relied upon the opinions of his vendors, who did not testify. On remand, written estimates may suffice, so long as they satisfy the requirements of business records under section 90.803(6), Florida Statutes (2005), or are uncontested....
CopyCited 7 times | Published | Supreme Court of Florida | 11 Fla. L. Weekly 203
...Clearly, neither conversation could come into evidence under the statement against interest exception for the reasons *35 discussed above. The state, however, contends that the trial court properly admitted these conversations into evidence as co-conspirator admissions under section 90.803(18)(e), Florida Statutes (1983)....
...e conspiracy and the appellant's participation in it. Damon v. State,
289 So.2d 720 (Fla. 1973); Honchell v. State,
257 So.2d 889 (Fla. 1971); State v. Wilson,
466 So.2d 1152 (Fla. 2d DCA 1985); State v. Haynes,
453 So.2d 926 (Fla. 2d DCA 1984). See §
90.803(18)(e), Fla....
...the trustworthiness of the statement. A statement or confession which is offered against the accused in a criminal action, and which is made by a codefendant or other person implicating both himself and the accused, is not within this exception. [3] § 90.803(18)(e), Fla....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2008 WL 818808
...wer authorization for restitution awards applies over the general statute. In fact, T.J.N, cites the general statute as applying to this case. [2] "Written opinions or estimates may qualify as a business record exception to the hearsay rule under section 90.803(b), Florida Statutes (2006), if production of estimates is a regularly conducted business activity." Butler v....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 21 Fla. L. Weekly Fed. D 723
...pening statement and the trial court excluded the testimony of Pollack, Masef, and Fezza as to the above exclamations made by appellant within seconds after the shot occurred. Appellant asserts that these statements should have been admissible under section 90.803(2), Florida Evidence Code, as "excited utterances." We agree. In our opinion, the statements qualified as excited utterances admissible under section 90.803....
...uding the testimony of witnesses to the shooting that described appellant Alexander's exclamations and actions immediately after firing the shot that killed the victim. This testimony was admissible under the res gestae rule now codified in sections 90.803(1), (2), and (3), Florida Statutes (1991), which define the conditions for admissibility of (1) spontaneous statements, (2) excited utterances, and (3) then existing mental and emotional conditions of the declarant....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2003 WL 1239115
...However, some of Gajate's statements were not verbal acts and were offered for the truth of the matter asserted: (1) appellant was the middleman, and (2) the money belonged to appellant or Green and he could not have brought it alone. Admission of these latter hearsay statements is justified under a different theory. Section 90.803(18)(e), Florida Statutes (2000), is the co-conspirator hearsay exception, and it provides that the following hearsay is admissible: A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy....
...Gajate's statement that appellant and Green needed to approve of the deal before it was complete, a verbal act, provided competent evidence from which the trial court could have concluded that appellant participated in the conspiracy. Admitting Gajate's remaining co-conspirator statements was thus justified pursuant to section 90.803(18)(e)....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 16 Fla. L. Weekly Fed. D 1714
...*995 Furthermore, we find that the trial court erred in admitting a tape recording of the anonymous tip into evidence at trial. The trial court found that the recording was admissible under the business records exception to the hearsay rule pursuant to section 90.803(6)(a), Florida Statutes (1987)....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 1554
...The defendant was convicted of the sexual battery of his 2 1/2 year old daughter, and sentenced to life in prison. The incriminating evidence consisted substantially of hearsay testimony admitted under either the spontaneous statement or excited utterance exceptions to the hearsay rule. Section 90.803(1) and (2), Florida Statutes (1979), provides: (1) Spontaneous statement....
...These exceptions encompass evidence frequently considered under what was referred to as the res gestae exception was referred to as prior to the adoption of the Florida Evidence Code. State v. Johnson,
382 So.2d 765 (Fla. 2d DCA 1980); 1976 Law Revision Council Note to subsections (1) and (2) of §
90.803, 6C Fla....
...Abuse Prosecutions, 40 U.Miami L.Rev. 19 (1985). However, in this case we would exceed that limit in stretching the concepts of time and excitement to the extent requested by the state. The trial in this case was conducted prior to the enactment of section 90.803(23), Florida Statutes, effective July 1st, 1985....
...he competency of the child as a witness. But we do note that in Glendening v. State,
503 So.2d 335, 340 (Fla. 2d DCA 1987), it was determined that a finding of incompetency to testify does not render hearsay statements unreliable for admission under section
90.803(23), Florida Statutes....
...With respect to the other issue on appeal, we find no error. We therefore reverse and remand for a new trial. We certify the *620 following question to the supreme court as one of great public importance: Whether out-of-court statements of a child are admissible under section 90.803(1) or (2), Florida Statutes, where they refer to a series of prior events which the testimony does not establish as having occurred simultaneously with or immediately preceding the hearsay statement of the victim....
...Still not satisfied that the supplemental briefs fully informed us on all significant aspects of the case, we requested, on December 24, 1986, second supplemental briefs, albeit we recognized that the questions being pondered were in a time frame preceding the effective date of section 90.803(23), Florida Statutes (1985), which is therefore not applicable....
...the witness is small, the confrontation clause mandates that the prosecution determine whether the victim is available. Accord Sluka v. State, 717 P.2d 394, 401 (Alaska App. 1986). This belief is supported by the requirement in the recently enacted section 90.803(23), Florida Statutes (1985) which requires that the child testify or be found to be unavailable....
...ere admissible in that case. Here, such statements were inadmissible because the critical evidentiary threshold had not been crossed. Whether they are spontaneous statements or excited utterances, the statements must be made, as expressly defined in section 90.803(1) and (2), Florida Statutes (1979), in close temporal proximity to the subject event. The statute is of no help to the court in the instant case, however, notwithstanding the presence of indicia of spontaneity and reliability of this child's statements to the first person who saw her once the father was away. 3. Section 90.803(23), Florida Statutes (1985) reflects the legislature's recognition that abused children may for years not be emotionally or physically able to be forthcoming about sexual abuse by one or more family members, let alone mere hours, days or weeks after the incidents....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 1998 WL 422142
...The defense objections were properly overruled. The State established that in the aftermath of the shooting incident, the witnesses were excited and upset. The testimony was properly admitted under the hearsay exception for excited utterances. See § 90.803(2), Fla....
...Again, stating that he was in fear of retaliation by friends of the Defendant. He also advised that to protect himself or to not fall into danger with this person's friends he might not be totally truthful with the court as far as the identity of the Defendant. (Emphasis added). Section 90.803(3), Florida Statutes, creates a hearsay exception for: (3) Then-existing mental, emotional, or physical condition. (a) A statement of the declarant's then-existing state of mind, emotion, or physical sensation, including a statement...
...5 might not be totally truthful with the court as far as the identity of the defendant was concerned. At trial, Manor repeatedly expressed uncertainty about his identification of the defendant. Manor's statements to Sergeant Frisenda came within the section 90.803(3) hearsay exception and were admissible to explain Manor's subsequent conduct, namely, his trial testimony. See id. § 90.803(3)(a)2; Avila v....
CopyCited 7 times | Published | Court of Appeals for the Eleventh Circuit | 76 A.L.R. Fed. 2d 651, 2010 U.S. App. LEXIS 16233
...giving too
much weight to the arrest affidavits, which have limited probative value under BIA
precedent and which would be inadmissible as hearsay in a Florida court. See In re
Arreguin de Rodriguez, 21 I. & N. Dec. 38, 42 (BIA 1995); Fla. Stat. § 90.803(8).
In any case, he argued, the affidavits did not allege he was caught with any drugs,
and any differences between the reports and his own version of events were
insignificant....
...But
Castano, unlike Garces, never denied that he had committed the offense and did not dispute any
of the factual allegations against him.
25
803(8) (police reports not admissible under public records hearsay exception); Fla.
Stat. § 90.803(8) (same), but that does not bar them from being considered in an
administrative immigration proceeding....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1995 WL 421258
...The appellant, Rolando Garcia, challenges his judgment and sentence for committing a lewd and lascivious act upon a child under the age of sixteen years. He argues, and we agree, that the trial court committed reversible error in failing to make the proper findings of reliability required by section 90.803(23), Florida Statutes (1991), prior to admitting hearsay statements of the child victim into evidence at trial....
...The state charged appellant in count one of a criminal information with committing a lewd and lascivious assault on a child in violation of section
800.04(1), Florida Statutes (1991), alleging that the incident occurred between September 1 and November 30, 1991. [1] Prior to trial, it filed the required notice under section
90.803(23)(b) notifying the appellant of its intent to introduce at trial certain hearsay statements made by the child relating to the offense charged....
...He also asserted that under section
90.403, Florida Statutes (1991), their probative value was substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. The trial court later conducted the hearing required by section
90.803(23)(a)1., during which it received the testimony of three witnesses to whom the child made statements....
...Although she was unsure, she thought this incident occurred before Halloween of the previous year, probably in September. Following the hearing, the trial court reserved ruling on the state's request to introduce these statements at appellant's trial. It later issued a written order finding they were admissible under section 90.803(23)....
...It also concluded, without further explanation, that "[t]he time, place, and occurrence of the statements made by the child victim to each of the respective witnesses were appropriate[,]" *391 and that these statements satisfied "the threshold criteria test of [section] 90.803(23) for being trustworthy." Finally, the trial court ruled that the statements were not "cumulative since the only evidence of the criminal acts complained of is the testimony of the child victim[,]" nor would their introduction into evidence,...
...charged in count two. The trial court later sentenced him to fifteen years in prison. Against this factual backdrop, we turn to an analysis of the law governing a trial court's determination as to the admissibility of child hearsay statements under section 90.803(23) and whether the trial court in this case complied with that law. As noted by the supreme court, "[s]ection 90.803(23), the child-sexual-abuse-hearsay exception, was enacted to enable trustworthy and reliable statements not covered under any other hearsay exception to be admitted in court." State v....
...To insure these critical criteria are satisfied before such a statement is admitted into evidence, the statute mandates that a trial court conduct a hearing outside the presence of the jury and determine that "that the time, content, and circumstances of the statement provide sufficient safeguards of reliability." § 90.803(23)(a)1....
...f the assertion, the reliability of the child victim, and any other factor deemed appropriate." Id. Finally, the statute requires a trial court "to make specific findings of fact, on the record, as to the basis for its ruling under this subsection." § 90.803(23)(c). In construing section 90.803(23)(c), the supreme court recently observed that it "envisions that the court will set forth the specific reasons that it relied upon and not *392 merely recite the statutory requirements relating to reliability." Feller v....
...of the statute, but also implicates the defendant's constitutional right to confrontation." Hopkins v. State,
632 So.2d 1372, 1377 (Fla. 1994). Furthermore, in a situation involving several child hearsay statements determined to be admissible under section
90.803(23), a defendant may still invoke the protection afforded by section
90.403 by seeking to "exclude successive hearsay witnesses whose testimony of prior consistent statements merely bolsters and adds credence to the child victim's testimony." Perry v. State,
593 So.2d 620, 621 (Fla. 2d DCA), review denied,
602 So.2d 942 (Fla. 1992). Thus, such evidence, although properly admissible as an exception to the hearsay rule under section
90.803(23), may nevertheless be excluded under the balancing test found in section
90.403 if the trial court determines that "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." Pardo v....
...Such a determination is within the sound judicial discretion of the trial court on a case-by-case basis. Perry,
593 So.2d at 621. Finally, the standard in reviewing a trial court's decision that such out-of-court statements manifest a sufficient indicia of reliability to be admissible under section
90.803(23) is one of abuse of discretion....
...Instead, our analysis was intended to underscore the prejudice which may befall a defendant, accused of one of the most heinous and widely condemned crimes known to society, when a trial court allows child hearsay statements into evidence without following the stringent, constitutionally-mandated requirements of section 90.803(23)....
...Accordingly, for the reasons expressed, we are compelled to reverse and remand for a new trial. On remand, however, the state *394 may again seek to introduce the child's hearsay statements as they relate to count one only, provided the trial court strictly complies with the requirements of section 90.803(23) prior to their introduction at trial....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 1581
...therein and is therefore hearsay. The statements contained on the tape do not fall within any hearsay exception. The state erroneously asserts that the tape-recorded statement is admissible under the state-of-mind exception which is provided for in Section 90.803(3), Florida Statutes....
...The Supreme Court held that the victim/declarant's statement to her daughter expressing her fear of the defendant prior to the victim's encounter with the defendant was relevant under the facts of the case to show the victim's state of mind and thus admissible under Section
90.803(3). Id. at 816. See, also Jenkins v. State,
422 So.2d 1007 (Fla. 1st DCA 1982) (hearsay statement of aggravated battery victim purportedly threatening the defendant held admissible under Section
90.803(3) on the issue of self defense.) We also reject the state's argument that the tape recording of Billy Dewayne Wyche's statement was "real evidence", not "testimonial", and thus not objectionable hearsay....
...o the pressure. Also admitted were reports of statements made by Anthony and Wilbur to police investigators after the homicides. Although this evidence was clearly hearsay, the state argued that such was admissible under the coconspirator exception, Section 90.803(18)(e), Florida Statutes....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2008 WL 80223
...Hearsay within hearsay is not excluded under the hearsay rule, "provided each part of the combined statements conforms with an exception" to the rule. §
90.805, Fla. Stat. (2006). While Love's statement to the unnamed declarant was an admission under section
90.803(18), the declarant's statement to Officer Levey falls under no hearsay exception....
...She replied that she had heard from "someone from the police department" that something was supposed to happen to Love. The court properly sustained the state's objection to this testimony. Although statements of police department employees would have been admissible under section 90.803(18)(d), the admission exception to the hearsay rule, here there were not sufficient indicia of reliability to the statement that the police targeted Love, in part because the person who made the statement was not identified....
CopyCited 7 times | Published | Supreme Court of Florida | 2003 WL 60944
...ee. WELLS, J. We have on appeal Abreu v. State,
804 So.2d 442 (Fla. 4th DCA 2001), a decision of the Fourth District Court of Appeal declaring invalid a state statute. We have jurisdiction, see art. V, § 3(b)(1), Fla. *401 Const., and conclude that section
90.803(22), Florida Statutes (1999), is unconstitutional in criminal proceedings to the extent that it allows the prosecutor to use at trial a witness's testimony from a previous judicial proceeding without a showing by the prosecutor that the witness is unavailable....
...dwelling. During the first trial, Jeffrey Eckman was the State's key witness, and he testified in person. Abreu's first trial ended in a mistrial declared after the jury deadlocked. On retrial, the trial court granted the State's request pursuant to section 90.803(22), Florida Statutes (1999), to present Eckman's testimony from the first trial in lieu of his live testimony....
...The record also reveals no express finding by the trial court that Eckman was unavailable. Abreu appealed the admission of the former testimony. The Fourth District agreed with Abreu's objections, reversed his conviction, and remanded for a new trial. Abreu,
804 So.2d at 444-45. That court determined that a 1998 amendment to section
90.803(22) effectively removed the unavailability requirement of section
90.804(2)(a), Florida Statutes (1999), as a prerequisite to the use of former testimony in lieu of live testimony. See Abreu,
804 So.2d at 443. Prior to 1998, only section
90.804(2)(a) governed the admission of former testimony in criminal proceedings, and it required that the witness be unavailable. At the same time, section
90.803(22) allowed the admission, notwithstanding a declarant's availability, of "[f]ormer testimony given by the declarant at a civil trial, when used in a retrial of said trial involving identical parties and the same facts." The 1998 amendment, however, greatly expanded the scope of section
90.803(22) to allow, notwithstanding a declarant's availability, the admission of [f]ormer testimony given by the declarant which testimony was given as a witness at another hearing of the same or a different proceeding ......
...After reviewing federal Sixth Amendment jurisprudence, however, the Fourth District concluded that "live testimony may not be constitutionally supplanted with former testimony in criminal cases absent a showing of unavailability." Id. at 444. Based upon this conclusion, the Fourth District held section *402 90.803(22) unconstitutional as applied in all criminal cases, absent a showing of unavailability. Id. In the instant case, the record does not show that the prosecutor demonstrated or even asked the trial court to declare that witness Eckman was unavailable for the second trial. Thus, the issue before this Court is whether section 90.803(22) is contrary to the Sixth Amendment of the United States Constitution by authorizing the use of a witness's testimony from a previous judicial proceeding in the trial of a criminal defendant in the absence of demonstrated unavailability....
...570, 875 P.2d 803, 810 (1994). CONCLUSION Accordingly, we affirm the Fourth District's decision in Abreu. We conclude that Abreu's right to confrontation has *406 been violated in this case and that he is entitled to a new trial. We also hold that section 90.803(22) violates the Confrontation Clause of the Sixth Amendment in criminal proceedings to the extent that it allows the prosecutor to use at trial a witness's testimony from a previous judicial proceeding without a showing by the prosecutor that the witness is unavailable....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1996 WL 2276
...[4] Generally, hearsay testimony is excluded from evidence because it is unreliable, however, the legislature has recognized that certain categories of hearsay are by their very nature reliable, and has listed such categories as exceptions to the exclusionary rule. See §§
90.803,
90.804, Fla....
...In this regard, spontaneous statements are included as one of the categories of hearsay exceptions because such statements are likely to be trustworthy since they are made at the time of, or immediately following, the declarant's observation of the event or condition described. See § 90.803(1) Fla....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1992 WL 856
...While we acknowledge the applicability of this common-law doctrine, see McDonald, we note that M.M.'s statements did not follow a period of silence which could have raised an inference of consent. Therefore, we hold that M.M.'s responses to the officer's questions were admissible as excited utterances under Section 90.803(2), Florida Statutes (1989)....
...r being struck by her assailant. She did not know whether her assailant had ejaculated. Turner testified that from this information, he knew he needed to conduct vaginal, anal, and oral examinations, and prepare microscopic slides to look for sperm. Section 90.803(4), Florida Statutes (1989) permits, Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment ......
...denied,
488 U.S. 901,
109 S.Ct. 250,
102 L.Ed.2d 239 (1988). Appellant contends that the statement in question was not reasonably pertinent to the doctor's medical diagnosis and/or treatment of the condition presented by the victim so as to be admissible under section
90.803(4)....
...Dr. Turner testified that M.M. had told him that she was raped, and that "[t]his was done, as she said, at gunpoint." I do not consider that this statement falls within the hearsay exception for statements dealing with medical diagnosis or treatment. § 90.803(4), Fla....
...The court should therefore have directed the jury to disregard the hearsay statement quoted above. See also Flanagan v. State,
586 So.2d 1085, 1102 (Fla. 1st DCA 1991) (Ervin, J., concurring and dissenting) (statements of fault not related to diagnosis and treatment are inadmissible under section
90.803(4))....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 1989 WL 2035
...4th DCA 1981); see also Williams v. State,
365 So.2d 201 (Fla. 1st DCA 1978). Records prepared by the probation department, may, with the showing of a proper predicate, be admitted into evidence under the business records exception to the hearsay rule. §
90.803(6), Fla....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 1990 WL 11787
...The frightened child gave an emotional description of the assailant to the police when they arrived two to three hours later, and the evidence shows that the child was excited, perhaps even hysterical, at the time his statements were made. His descriptions were, therefore, admissible, pursuant to section 90.803, Florida Statutes (1987), as excited utterances....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1993 WL 502610
...rs of age. §
800.04, Fla. Stat. (Supp. 1990). Six days prior to trial, the state filed several notices of hearsay evidence indicating that it intended to introduce hearsay testimony concerning statements made by K.S. to three state's witnesses. [1] Section
90.803(23)(b), Florida Statutes provides the notice of intent to offer a child victim's hearsay statement must be received by the defendant ten days prior to trial....
...me scheduled for opening statements. The trial court determined that Williams was not prejudiced because defense counsel had deposed the hearsay witnesses who discussed the incident during their depositions. During the hearsay admissibility hearing, section 90.803(23)(a), Florida Statutes, the trial court considered the deposition testimony of the three witnesses and ruled that Williams could only present live testimony upon a showing of conflict with the depositions....
...on the private premises of another, or so near thereto as to be seen from such private premises." The incident in the instant case does not satisfy this requirement as it occurred in Williams' home. On remand the judge must hold a new hearing on the 90.803(23) issue if the state intends to introduce the hearsay statements. The prosecution should give Williams the proper notice pursuant to section 90.803(23), Florida Statutes....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2002 WL 31696070
...due were present, but that the amount was not "forensically significant." The state did not introduce this report in evidence; however, Tindal did attempt to introduce the FDLE report into evidence under the exception to the hearsay rule provided by section 90.803(18)(d), Florida Statutes (2001)(admission by an agent of a party-opponent)....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1995 WL 106305
...ult on Child C, age eight at trial. [1] Appellant contends the trial court erred when, without making the requisite statutory findings, it admitted multiple hearsay statements of the victims, pursuant to the Child Sexual Abuse Hearsay Exception. See § 90.803(23), Fla....
...Appellant first contends the trial court erred when it admitted the testimony of three witnesses who related hearsay statements of the child-victims. He argues the trial court did not set forth the requisite findings of reliability as required by statute. See § 90.803(23)(c), Fla....
...nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and 2. The child ... a. Testifies; ... . See § 90.803(23)(a)1-2, Fla....
...1994) (holding that defense counsel's general objection to the reliability of hearsay evidence necessarily encompassed the sufficiency of the judge's findings as to that reliability and counsel was not required to specify each finding of fact made pursuant to section 90.803(23) to which he was objecting)....
...In fact, the Supreme Court has specifically determined that violations of the Confrontation Clause, including denial of face-to-face confrontation are subject to harmless-error analysis. Id.,
632 So.2d at 1377. We agree with appellant that the findings of the trial court merely track the statutory language of section
90.803(23) and, as such, are insufficient....
...4th DCA 1990); Diaz v. State,
618 So.2d 346 (Fla. 2d DCA), rev. denied,
626 So.2d 204 (Fla. 1993). The supreme court in Hopkins, when confronted with constitutional error, further explained that the trial court's failure to make adequate findings pursuant to section
90.803(23) does not constitute per se reversible error and that a harmless error analysis is appropriate....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1991 WL 16299
...Prior to trial, the defense challenged both the sufficiency of the notice and the admissibility of the videotape, *958 based on hearsay. The court found the notice to be adequate and held a hearing to determine admissibility under the provisions of section 90.803(23), Florida Statutes (1987)....
...According to defense counsel, the child's testimony was obviously coached. Counsel also pointed out that there was no physical evidence to corroborate the statements made by the child. Finally, the videotape was objected to as "cumulative" and "prejudicial". In finding the videotape admissible under section 90.803(23), Florida Statutes (1987), the trial court stated: I find that it's clear from the tape that the victim is able to testify competently....
...On appeal, appellant contends that the admission of the hearsay statements of the child through the CPT counselor, the CPT physician, and the videotape was reversible error. [3] Appellant initially complains that the statutory notice required under section 90.803(23) was inadequate....
...[7] The real problem in this case, because the child victim did testify and because her testimony was so closely consistent with the trial testimony, is why the CPT counselor or doctor [8] should have testified at all about what the child had said out-of-court, or why the tape was played. What the advent of legislation like section 90.803(23), Florida Statutes, has done is to create an invitation to repetitive testimony consistently prohibited in Florida prior to the amendment....
...r was crucial. Id. at 395. In contrast, the First District Court of Appeal, in Salter v. State,
500 So.2d 184 (Fla. 1st DCA 1986), found that the admission of a child victim's statements to a CPT counselor without making the requisite findings under section
90.803(23) was harmless error precisely because the child testified at trial and both the child's mother and a friend testified to the child's statements immediately after the incident....
...1988) the Supreme Court of Arkansas shrugged off the defendant's argument that he was prejudiced when, in addition to the child, the child's mother, a deputy sheriff and a family friend were all allowed to testify concerning the child's out-of-court statements under the Arkansas equivalent of section 90.803(23)....
...of admissibility and that the trial court has the discretion to control admission of cumulative evidence. [11] *962 Although, in this case, we cannot say that the trial court erred in ruling the child's out-of-court statements were admissible under section 90.803(23), Florida Statutes, we nevertheless conclude that it was reversible error to utilize this hearsay exception as a device to admit prior consistent statements. In reaching this conclusion we are convinced the important function of section 90.803(23), Florida Statutes is in no way impaired....
...k of verbal skill, their lack of comprehension and fear of the trial process, as well as other factors, all conspire to make child victims poor candidates for in-court testimony about the crimes perpetrated on them. The hearsay exception embodied in section 90.803(23) is designed to help remedy this problem by providing an avenue for admissibility of the out-court-statements....
...e child. Where the child's out-of-court statements are needed to provide evidence of any aspect of the crime or related events which the testifying or unavailable child cannot adequately supply, such out-of-court statements are available pursuant to section 90.803(23)....
...*963 As Florida courts have long expressed, [12] overbroad use, as occurred in this case, of the statutorily authorized device for admission of a child victim's out-of-court statements creates unfair prejudice to a criminal defendant. We can find no legal basis to conclude that section 90.803(23), Florida Statutes, was designed to be used for introduction of multiple instances of testimony repeating a child's prior consistent statements, and on this record, we cannot conclude the repetitious testimony did not influence the jury's verdict....
...ant to Florida Rule of Appellate Procedure 9.125: IN A CASE IN WHICH THE CHILD VICTIM OF A SEXUAL OFFENSE TESTIFIED FULLY AND COMPLETELY AT TRIAL AS TO THE OFFENSE PERPETRATED UPON HIM OR HER, CAN IT CONSTITUTE REVERSIBLE ERROR TO ADMIT, PURSUANT TO SECTION 90.803(23), FLORIDA STATUTES, PRIOR, CONSISTENT OUT-OF-COURT STATEMENTS OF THE CHILD WHICH WERE CUMULATIVE TO THE CHILD'S IN-COURT TESTIMONY OR MERELY BOLSTERED IT? NOTES [1] The state described the hearsay testimony to be introduced as follows: 6....
...[7] Review of the videotape confirms the trial court's observation that the child was not unduly prompted. See n. 2, supra. [8] On this record, we do not agree with the state that the doctor's testimony qualifies for the "medical diagnosis or treatment" hearsay exception. § 90.803(4), Fla....
...3 Hughes, Florida Evidence Manual § 346 at 21 (1975). The statements under review in this case are hearsay because they do not qualify as non-hearsay under the rule. The hearsay statements are nevertheless excepted from the rule of inadmissibility of hearsay under section 90.803(23). Such prior consistent statements of child victims clearly were inadmissible prior to enactment of section 90.803(23), Florida Statutes, to bolster and lend credence to their subsequent testimony....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 2005 WL 840463
...Otis Lamar Towbridge appeals his conviction and sentence on two counts of aggravated battery with great bodily harm and using a deadly weapon. Of the six issues raised by Towbridge, we write only to address the issue of the admission of a 911 tape, which was admitted as a spontaneous statement pursuant to section 90.803(1), Florida Statutes (2003)....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...[2] Counsel also argued that the testimony of an associate medical examiner, who based his conclusions on the Miami lab report but had no personal knowledge as to the testing procedure actually utilized, was inadmissible hearsay, and not within the exceptions of § 90.803(6), Florida Statutes....
...denied
383 So.2d 1197 (Fla. 1980). Nevertheless, in the present case the contested evidence was clearly not admissible under the provisions of Chapter 316, and we conclude that the evidence was likewise not admissible as a business record pursuant to §
90.803(6), Florida Statutes....
...And while City of Tampa v. Green,
390 So.2d 1220 (Fla. 1st DCA 1980), indicates that the deputy retains much discretion in this regard, the totality of the circumstances in the present case show a "lack of trustworthiness" which would further preclude admissibility under §
90.803(6)....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2004 WL 2026790
...NOTES [1] The court said, in part, "what the defendant said at the scene or at any time, is a self serving statement, it's hearsay." TR. 177. The court was making the point that the defendant's own statement to Mr. Green is admissible hearsay when offered by the State against the defendant, see id. § 90.803(18), but inadmissible hearsay if offered by the defendant....
CopyCited 6 times | Published | Florida 4th District Court of Appeal
...The error was preserved by timely and sufficient objections and motions by Yanes. The admission of the hearsay testimony pursuant to the co-conspirator exception to the hearsay rule was acceptable provided that the trial court instructed the jury at *1249 the time as requested by counsel in accordance with the provision of Section 90.803(18)(e), Florida Statutes (1981), or as outlined in Boyd v....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1999 WL 729014
...Morris is directly on point and is dispositive. AFFIRMED. DAUKSCH and GOSHORN, JJ., concur. NOTES [1] The state also argues that the officer's testimony as to what White had told her constituted an exception to the hearsay rule as an "excited utterance" pursuant to section 90.803(2), Florida Statutes (1997)....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2001 WL 1246514
...These facts further support our conclusion that the Netherlys' move to Tennessee did not delay or prevent prosecution. [3] Based on our ruling on this issue, we need not reach the merits of the remaining arguments which challenge Mr. Netherly's conviction for count 1. [4] We note that the claims of lien were admissible under section 90.803(6), Florida Statutes (1997), as business records....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1995 WL 594929
...Prior to trial the state filed a Notice of Intent to Use Hearsay Statements. The court held a hearing on the admissibility of the videotaped and audiotaped interviews. The court ruled that it would admit the statements into evidence under the statement-of-child-victim exception to the hearsay rule contained in section
90.803(23), Florida Statutes (1991). At trial the state, over defense counsel's objections, played both tapes to the jury. The trial court erred in concluding that the videotape and audiotape could be admitted into evidence pursuant to section
90.803(23). The trial court did not have the benefit of the supreme court's opinion of State v. Dupree,
656 So.2d 430 (Fla. 1995). The Dupree court held that a child's hearsay statements cannot be admitted under section
90.803(23) unless the case involves the defendant's prosecution for the victimization of the child whose statements are being related. Thus, even though a child may be abused or victimized by what he or she has witnessed, the child cannot be considered a victim for the limited exception to the hearsay rule contained in section
90.803(23)....
...y mommy's neck. He choked her and choked her and choked her." The court ruled that the first statement was not hearsay because it was not admitted to prove the truth of the matter asserted and that the second statement should be admitted pursuant to section 90.803(23)....
...We conclude that the trial court was correct on its ruling regarding the first statement; however, the court's ruling on the second statement was incorrect. As discussed above, in order for a child's out-of-court statements to be admissible *894 under section 90.803(23), the prosecution of the defendant must be based on the victimization of the child whose statements are being related. Dupree. Thus, the four-year-old child's statements could not be admitted under the hearsay exception contained in section 90.803(23). Further, we conclude that the second statement would not be admissible under section 90.803(4), Florida Statutes (1991) which provides that the following are admissible as an exception to the hearsay rule: Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by...
..., or sensations, or the inception or general character of the cause or external sources thereof, insofar as reasonably pertinent to the diagnosis or treatment. Statements describing the inception or cause of an illness or injury are admissible under section 90.803(4) if they are reasonably pertinent to diagnosis or treatment....
...diagnosis or treatment of a child who has been a victim of sexual abuse. The Jones court rejected the federal view of expanding the medical diagnosis and treatment exception and held that such statements could be admitted only if the requirements of section 90.803(23) were met. We, however, have determined that section 90.803(23) does not apply to this case due to the fact that this case did not involve the prosecution of appellant for the victimization of the child whose statements are being related. The statement would not be admissible under section 90.803(4) for another reason....
...The defense objected, and the court ruled that it was admissible under the excited utterance exception to the hearsay rule. An out-of-court statement is admissible if it is made in response to a startling event during the trauma or stress of the event. § 90.803(2), Fla....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 17673, 2010 WL 4628532
...e the view the trial court adopted. Huff v. State,
569 So.2d 1247, 1249 (Fla.1990) (citing Canakaris v. Canakaris,
382 So.2d 1197, 1203 (Fla. 1980)). Moreover, all relevant evidence is admissible unless excluded by law. §
90.402, Fla. Stat. (2008). Section
90.803(22), Florida Statutes (2008), allows introduction of former testimony, notwithstanding a witness' availability, as long as the witness was subject to direct, cross, and redirect examination....
...vailability was not required for prior sworn testimony sought to be admitted by the defense if (as here) the opposing party was afforded a full opportunity to cross-examine the declarant. The trial court then observed that the Ehrhardt commentary on
90.803(22) included *944 a comment that "all evidence is always subject to a
90.403 analysis." The State expressed concerns that it had insufficient time to subpoena Ms....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 2004 WL 1091140
...At the trial, defense counsel objected on the ground that the testimony concerning the amount of cash taken from the store was "hearsay." On appeal, Appellant contends that the testimony is inadmissible under the "business records" exception to the hearsay rule, section 90.803(6)(a), Florida Statutes (2001), because the purported custodian of records never testified that she was the actual custodian of the records on which the loss analysis was based, nor were the records identified, shown to be kept in the regular course of business, or offered into evidence....
...by Woolworth on its bill of lading) was $935.88. See id. at 1047-48. Noting that the business-records exception to the hearsay rule permits the admission of "[a] memorandum, report, record, or data compilation," the district court further noted that section 90.803(6)(a), Florida Statutes, "does not authorize hearsay testimony concerning the contents of business records which have not been admitted into evidence." Id....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 2012 Fla. App. LEXIS 3806, 2012 WL 752034
...test, performed the chemical analysis, or interpreted the results; nor was she the custodian of the record. This testimony was hearsay and insufficient to lay the necessary predicate to introduce the lab report containing the drug test results. See § 90.803(6)(a), Fla....
CopyCited 6 times | Published | Supreme Court of Florida | 11 Fla. L. Weekly 83
...y, which would have been corroborative of Morris's and therefore highly valuable to the defense. The trial court excluded the *293 proffered testimony as inadmissible hearsay. The district court found the state-of-mind exception to the hearsay rule, section 90.803(3)(a) 1 and 2, Florida Statutes (1981), inapplicable because it found Morris's, not Donaldson's, state of mind to be at issue as it was undisputed that Donaldson informed the police of Morris's activities....
...The burden lies with the state to disprove entrapment, which is usually done by proving the predisposition of the defendant beyond a reasonable doubt. Wheeler,
468 So.2d at 981. With the foregoing in mind, we consider the admissibility of Gotbaum's testimony. Section
90.803 excepts from the hearsay rule the following: (3) Then existing mental, emotional, or physical condition....
...idence is afforded to: 1. Prove the declarant's state of mind, emotion, or physical sensation, at that time or at any other time when such state is an issue in the action. 2. Prove or explain acts of subsequent conduct of the declarant. We find that section 90.803(3)(a)2 applies to render Gotbaum's testimony regarding Donaldson's statement admissible as a hearsay exception, tending to prove Donaldson's subsequent conduct relative to Morris....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 3322, 2010 WL 934070
...Essex v. State,
917 So.2d 953, 956 (Fla. 4th DCA 2005). However, the trial court's discretion is limited by the rules of evidence. Id. The issue here is whether the document qualified for admission under the public-record exception to the hearsay rule. Section
90.803(8), Florida Statutes (2008), states that: Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed purs...
...r or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. As the Florida Supreme Court explained in Yisrael v. State,
993 So.2d 952, 959 (Fla.2008): "Public record," as used in section
90.803(8), only encompasses two types of records. The first type includes records setting forth "the activities of the office or agency." §
90.803(8), Fla. Stat. (2004); [Charles W. Ehrhardt, Florida Evidence ] § 803.8, at 906 [(2007 ed.)]. And the second type includes records setting forth "matters observed pursuant to [a] duty imposed by law as to matters which there was a duty to report." §
90.803(8), Fla....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 690
...First, it is plain that the accident report which was prepared solely in anticipation of litigation was not admissible in evidence. It constituted, without dispute, hearsay evidence and was not admissible, as urged, under the business records exception to the hearsay rule. [2] § 90.803(6)(a), Fla....
...Although clearly the report was a business record kept in the regular course of the defendant restaurant's business, the report was nonetheless inadmissible under the business records exception because "the sources of information or other circumstances show lack of trustworthiness." § 90.803(6)(a) Fla....
...Ware,
247 F.2d 698 (7th Cir.1957); Hartzog v. United States,
217 F.2d 706 (4th Cir.1954). Ehrhardt states the controlling law here: "Not all records regularly made by a business are admissible; a requirement of minimum reliability of a record is contained in Section
90.803(6) [Florida Statutes] which states that when the `sources of information or other circumstances show lack of trustworthiness' business records are not admissible....
...block area. Nothing on floor. Called rescue. She sat up & complained of sprained wrist." Defendant's Exhibit A. [2] It is also not admissible, as the defendant restaurant concedes, under the past recollection recorded exception to the hearsay rule, § 90.803(5), Fla....
...In order to qualify as a past recollection recorded, the document in question must, among other things, be "[a] memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable him to testify fully and accurately... ." § 90.803(5), Fla....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2003 WL 21276029
...ee. GROSS, J. The main issue in this appeal is whether a crucial witness's tape-recorded statement given to the police shortly after a criminal incident was properly admitted in evidence under the recorded recollection exception to the hearsay rule, section 90.803(5), Florida Statutes (2001)....
...Cabrera stated that she was very angry and "just wanted to see [appellant] die that day." Over objection, the state introduced the taped statement Cabrera had given to Deputy Barber on the night of the arrest. The trial judge ruled that the statement was admissible under section 90.803(5)....
...Cabrera was coherent at the time she gave the statement, not groggy or sleepy and that she was responding to questions appropriately, and I have read the statement and it shows that. The jury found appellant guilty as charged of possession of a firearm by a convicted felon. Often called past recollection recorded, the section 90.803(5) recorded recollection exception to the hearsay rule provides that the following is "not inadmissible as evidence, even though the declarant is available as a witness": A memorandum or record concerning a matter about which a witness...
...er was fresh in the witness's memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party. § 90.803(5). The exception is "generally recognized in federal and state courts." 6C Fla. Stat. Ann. 348 (1999). At the time section 90.803(5) was adopted in 1976, "[e]xisting Florida law [was] in agreement with this exception." Id....
...6 (Fla.1976) (emphasis added). The applicability of the recorded recollection exception in this case requires examination of three issues: (1) May a tape recording be recorded recollection? (2) Was the tape recording "made" by Lourdes Cabrera within the meaning of section 90.803(5)? (3) Did the state lay an adequate foundation for the admission of the tape recording even though Lourdes Cabrera did not assert that, at the time it was made, the tape accurately represented her knowledge of the incident? Although the exception to the hearsay rule developed with respect to written documents, section 90.803(5) allows for tape recordings as recorded recollection....
...Nolan, 427 Mass. 541, 694 N.E.2d 350, 352-53 (1998); Mitchell v. Archibald, 971 S.W.2d 25, 28 n. 4 (Tenn.App. 1998); State v. Marcy, 165 Vt. 89, 680 A.2d 76, 77-82 (1996). Contrary to appellant's argument, Cabrera "made" the tape recording within the meaning of section 90.803(5)....
...Cabrera remembered giving a statement to the police, but did not remember its contents. Cabrera did not testify at trial that her taped statement accurately reflected her knowledge of the incident at the time it was made. She did not testify that she tried to be truthful at the time she spoke to Deputy Barber. Section
90.803(5) requires the recorded recollection be "shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly." Florida Supreme Court cases predating the enactment of section
90.803(5) required the witness who made the record to testify "that he knew at the time it was written that it was accurate." Garrett,
336 So.2d at 570 n....
...round the making of an out-of-court statement, the reliability of a recorded recollection depends on the credibility of its maker. For this reason, *682 the law requires the maker to adopt the recorded recollection as his own. We do not believe that section 90.803(5) changed Florida law requiring the witness to acknowledge the accuracy of the earlier record or statement....
...On the witness stand, the co-defendant did not remember providing a taped confession to a detective and refused to even acknowledge that his voice appeared on the tape. We held in Kimbrough that the state had not laid a proper predicate for admitting the tape under section
90.803(5) because the co-defendant "could not testify either that the statement was his or that it was accurate." Kimbrough,
846 So.2d at 544....
...excited utterances. The excited utterance exception to hearsay is that "[a] *683 statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." § 90.803(2)....
...Jano,
524 So.2d 660, 662 (Fla. 1988)); see State v. Skolar,
692 So.2d 309, 310 (Fla. 5th DCA 1997). Applying the Stoll test, we find no error in the trial court's conclusion that two girls' statements were properly deemed to be excited utterances pursuant to section
90.803(2)....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 1546
...She said, "Chris Hanson." * * * * * * (Objection was made by appellant's counsel and was overruled by court) Q. What did she say? A. Chris Hanson had sex with her about four or five times this summer and she said it happened at his house and she denied having any boyfriends. Section 90.803(4), Florida Statutes (1985) provides an exception to the hearsay rule, as follows: STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT Statements made for purposes of medical diagnosis or treatment by a person seeking the diag...
CopyCited 6 times | Published | Florida 5th District Court of Appeal
...Equitable Life Assurance Society of U.S.,
299 So.2d 163 (Fla. 3d DCA 1974). The affiant did not (nor could he) state that he had personal knowledge of the matters contained in Metro's business records, nor that the bank records were complete or correct and were kept under his supervision and control. See §
90.803(6), Fla....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 17 Fla. L. Weekly Fed. D 1840
...dence of either the alleged criminal act or appellant's part in it. The child victim inconsistently related the details of the incident several times prior to trial. The state's case-in-chief relied heavily on hearsay statements admitted pursuant to section 90.803(23), Florida Statutes (1989)....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2008 WL 2775866
...sentenced as a PRR; however, the postconviction court did not address Deck's specific claim that the State failed to give notice of its intent to rely on business records and that counsel was ineffective for failing to object to this omission. *1239 Section 90.803(6)(c), Florida Statutes (2004), requires a party intending to offer a business record into evidence by means of a certification or declaration to serve written notice of its intent on every party and to make the evidence available for...
...sel to inspect the letter sufficiently in advance of its use at sentencing to allow for a proper challenge to its admissibility. However, Deck has failed to sufficiently allege any prejudice from trial counsel's omission in this case. The purpose of section 90.803(6)(c) is to protect a party's due process right to have notice of the evidence against him or her. See United States v. Bledsoe, 70 Fed.Appx. 370, 373 (7th Cir.2003) (noting that the purpose of the federal counterpart to section 90.803(6)(c) is to provide the opposing party with notice of the evidence against him and an opportunity to challenge the accuracy and reliability of those records)....
...It does not function as an exclusionary rule that would prohibit the use of such evidence in the absence of a due process violation. Cf. United States v. Newell,
239 F.3d 917, 921 (7th Cir.2001) (holding that the failure to provide the notice required by the federal counterpart to section
90.803(6)(c) does not require exclusion of the evidence in the absence of prejudice)....
...admissible hearsay. In denying this claim, the postconviction court found that the release-date letter constituted "a certified affidavit from the Department of Corrections establishing the Defendant's release date," and thus it was admissible under section 90.803(6)....
...Weekly S131, ___ So.2d ___,
2008 WL 450398 (Fla. Feb. 21, 2008). In Yisrael, the supreme court resolved a split among the District Courts of Appeal concerning whether a release-date letter, standing alone, constituted either a business record that could be properly admitted under section
90.803(6) or a public record that could be properly admitted under section
90.803(8)....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2008 WL 2744243
...fendant's booking information or his driver's license. This is incorrect as Detective Schuster testified that the defendant's address was provided to her by the defendant himself. Thus, the information Detective Schuster obtained was admissible. See § 90.803(18)(a), Fla....
CopyCited 6 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 592, 2013 WL 3466777, 2013 Fla. LEXIS 1421
statement is unpreserved and without merit. See §
90.803(18)(e), Fla. Stat. (2005). “‘In order to preserve
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 162, 2015 WL 71816
...Sebastian Lakes Condo. Ass’n,
123 So. 3d 617, 620 (Fla. 4th DCA 2013). The trial court’s granting of a
motion for involuntary dismissal is reviewed de novo. See Deutsche Bank
Nat’l Trust Co. v. Huber,
137 So. 3d 562, 563 (Fla. 4th DCA 2014)
Section
90.803(6), Florida Statutes (2008), “provides a hearsay
exception for records of regularly conducted business activity.” A.S....
...Such
foundation may be established in one of three ways:
“First, the proponent may take the traditional route, which
requires that a records custodian take the stand and testify
under oath to the predicate requirements.” [Yisrael,
993 So.
2d at 956] (citing §
90.803(6) (a), Fla....
...“Second,
the parties may stipulate to the admissibility of a document
as a business record.” Id. “Third and finally, since July 1,
2003, the proponent has been able to establish the business-
records predicate through a certification or declaration that
complies with sections
90.803(6)(c) and
90.902(11), Florida
Statutes (2004).” Id....
... “go through the files, check [them] for . . . accuracy, . . . and then make
an initial contact with the customer.” Id.
The Second District held WAMCO’s records were properly admitted
under the business records exception, noting that, although documents
may be excluded under section 90.803(6) if “the sources of information or
other circumstances show lack of trustworthiness,” the debtors “did not
demonstrate, and nothing in the record establishe[d], that the loan
information WAMCO received from Bank of America was...
...-7-
919 F.2d 981, 986-87 (5th Cir. 1990); Air Land Forwarders, Inc. v. United
States,
172 F.3d 1338, 1342-44 (Fed. Cir. 1999); United States v. Bueno-
Sierra,
99 F.3d 375 (11th Cir. 1996). This principle is codified within
section
90.803(6) itself, which provides trial courts the ability to exclude
documents otherwise fitting the business records exception where “the
sources of information or other circumstances show lack of
trustworthiness.” §
90.803(6)(a), Fla....
...Here, Bank of New York
attempted to introduce into evidence the Borrower’s payment history.
Knowles was called as the records custodian and established the requisite
knowledge and foundation for the admission of Resurgent’s business
records pursuant to the business record exception contemplated by Rule
90.803(6)....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2000 WL 3913
...oncerning the intervening cause instruction. Perry challenges the trial court's ruling that the compulsory medical examination reports of Drs. McCraney and Phillips were admissible under the business record exception to the hearsay rule contained in section 90.803(6), Florida Statutes (1997)....
...ardt points out that when a record is made for the purpose of litigation, its trustworthiness is suspect and should be closely scrutinized, and that most of the time, the report of an expert made for the purpose of litigation is not admissible under section 90.803(6)....
...Consequently, should this issue arise in subsequent proceedings, the damage award should be reduced by the remaining unpaid PIP benefits. We reverse the final judgment and remand for a new trial on damages. CAMPBELL, A.C.J., and SALCINES, J., Concur. NOTES [1] Section
90.803 provides in relevant part: The provision of §
90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness.......
...(b) No evidence in the form of an opinion or diagnosis is admissible under paragraph (a) unless such opinion or diagnosis would be admissable under §§
90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly. [2] Addressing Federal Rule of Evidence 803(6), which is identical to section
90.803(6), Florida Statutes, McCormick on Evidence states that the specific "inclusion of opinions or diagnoses within the [business record exception] rule only removes the bar of hearsay....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1988 WL 6401
...Jester's testimony explained how the videotaped interview was conducted. He described the procedures utilized both before and after the taping. After Jester's testimony, the state immediately asked for specific findings of fact from the court as to the videotape's reliability as required by section 90.803(23)....
...and that he would allow the introduction and use of the video. The judge made no other express findings on this issue. The trial court did not at any time make the required specific findings of fact to justify its admission of the video, pursuant to section 90.803(23), Florida Statutes....
...In contrast, the trial court in Glendening v. State,
503 So.2d 335, 339 (Fla. 2d DCA 1987), did make the requisite findings of fact with respect to the testimony of the victim's interviewer. Here the trial court erred by not recording the requisite factual findings pursuant to section
90.803(23)(c) (which the state specifically requested), and which would have been appropriate after the pretrial hearing in which the interviewer was examined as to the reliability of the interviewing procedure....
...earsay statements of the victim were made to the mother at least six months after the assault allegedly occurred, and were not made while the victim was under the stress caused by the alleged assault, they do not qualify as an excited utterance. See section 90.803(2), Florida Statutes (1985) and cases cited above....
...The state has not met its burden in establishing that the trial court abused its discretion by granting appellee's motion for new trial. The order granting appellant a new trial is therefore affirmed. SMITH, C.J., and WENTWORTH, J., concur. NOTES [1] Section 90.803(23) Florida Statutes (1985) provides in pertinent part: (23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM OF SEXUAL ABUSE OR SEXUAL OFFENSE AGAINST A CHILD....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1995 WL 29050
...told her what to say in court. The appellant also disputes the trial court's admission of the child's out-of-court hearsay statements to a child protection team investigator, a detective and a child psychologist. Such a statement is admissible under section 90.803(23), Florida Statutes (1993), if a court finds in a hearing outside the jury's presence that the time, content and circumstances of the statement provides sufficient safeguards of reliability and the child either testifies, or is otherwise unavailable. The state observed the proper notice requirements. Section 90.803(23)(c) requires that the court make specific findings of fact, on the record, as to the basis for its ruling....
...sical *894 age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate. § 90.803(23)(a)1., Fla....
...But its reliance on the victim's out-of-court hearsay statements to prove the corpus delicti presupposes the statements' admissibility. Clearly, the erroneous admission of the father's statements cannot be said to be harmless. State v. DiGuilio,
491 So.2d 1129 (Fla. 1986). "Although section
90.803(23)(1)2.(b) requires that other corroborating evidence must exist before hearsay evidence can be admitted, this requirement is in addition to the requirement that the hearsay evidence, in and of itself, must be reliable." Townsend,
635 So.2d at 956-57....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 1990 WL 4567
...The parties are in agreement that the son's testimony regarding Joseph Keeton's statement is hearsay. However, the Insurers argue, inter alia, that the statements were properly admitted under the spontaneous exclamation or excited utterances exceptions to the hearsay rule contained in Section 90.803(1) and (2), Florida Statutes (1987)....
...urers, it was error for the court to rule that the testimony was admissible. We find the Insurers' other arguments advocating the admissibility of the hearsay statements to be without merit and, accordingly, reverse. Reversed and remanded. NOTES [1] Section 90.803(1) and (2) provide: (1) Spontaneous statement....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2001 WL 194890
...Many of Monahan's statements to Sadler are admissible through Sadler as non-hearsay to show Monahan's state of mind inconsistent with notice or knowledge, see CHARLES W. EHRHARDT, FLORIDA EVIDENCE § 801.6, 632-33 (1999 ed.), or as an exception to the hearsay rule under section 90.803(3), Florida Statutes (2000)....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1992 WL 361265
...The excluded records contain the results of two blood alcohol tests, one conducted and evaluated by the hospital's own personnel, and a second test conducted and evaluated by an outside laboratory at the hospital's request. The question presented by this case deals with the application of FEC section 90.803(6)(b) to trial court decisions excluding hospital records....
...through the hospital's own records and without the diagnoser or opinion-giver being present for cross-examination. That version is, however, entirely different from the comparable provision in FEC. Modeled only partially after the federal rule, FEC section 90.803(6) provides as follows: 90.803 Hearsay exceptions; availability of declarant immaterial....
...As to the hospital's own test, we observed that: The report of laboratory blood test results performed in a hospital and contained in a patient's hospital record is generally admissible in evidence when the appropriate foundation is laid by a qualified person such as a hospital records custodian pursuant to [FEC section 90.803(6)]....
...permit the defendants even to make a proffer on the records custodian's testimony. The clear implication of our holding is thus that the evidence was required to be admitted upon a showing that the blood test qualified as a business record under FEC section 90.803(6), without any consideration as to the accuracy or reliability of the record....
...FEC section
90.403 authorizes the trial judge to exclude concededly relevant evidence on a finding that it is prejudicial. To remove any possible prejudice from bare testing data in a hospital chart the judge is empowered, under subsection (b) of FEC section
90.803(6), to conclude that the test result or chart entry requires the additional circumstance of testimony from a qualified expert to establish its use in the case....
...The court is allowed, in short, to weigh any possible misunderstanding or prejudice from such evidence against its diagnostic implications. In light of the foregoing, we now hold that when medical record entries are sought to be admitted under FEC section 90.803(6), if properly challenged by the opponent with a sufficient showing that relates to the accuracy, reliability or trustworthiness of the entry, the trial court may in its discretion decline to admit them unless the proponent of the evidence lays the proper predicate for the entry....
...By a proper predicate, we mean evidence as to the drawing of the blood, the chain of custody, the administration of the test, and the interpretation and reporting of the test result. Furthermore, even if the requirements for business record admission under FEC section 90.803(6) are shown, or if the proper predicate is established, the trial judge must still assess the evidence for admissibility from the standpoints of relevance, materiality, competency, expert opinion, or the possibility that inherent prejudice may outweigh probative value....
...blood alcohol test results solely as business records and without the protection of expert testimony as to their uses and meaning. [7] To do so would be to substitute our judgment for that of the *1277 judge on the scene. We can find nothing in FEC section 90.803(6) that empowers us to do so....
...And because the en banc opinion goes too far too fast, I respectfully dissent. WARNER, Judge, dissenting. I do not disagree with the legal holding of the majority nor does it conflict with what was said in the panel opinion. [8] Simply put, medical records are admissible under FEC section 90.803(6) through a records *1280 custodian, unless the opponent carries the burden showing the untrustworthy nature of the evidence....
...Since the entire rationale behind the business records exception is based on "the reliability of business records supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying on them," Sponsor Notes, section 90.803(6), Florida Statutes, I conclude that untrustworthy records are assumed to be the exception rather than the norm....
...at determination will not be disturbed on appeal without a clear showing of abuse of discretion. Executive Car & Truck Leasing Inc. v. DeSerio,
468 So.2d 1027 (Fla. 4th DCA), review den.,
480 So.2d 1293 (Fla. 1985). [5] Our opinion does not cite FEC section
90.803(6) or discuss how its text applied to the facts and circumstances....
...Appellant then requested that he be allowed to call personnel from the hospital's laboratory and from the independent laboratory to provide the predicate. The trial judge denied that request. The trial took place, but the jury never heard how much alcohol appellee had in her blood at the time of the accident. Section 90.803(6), Florida Statutes (1989) reads: RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY....
...ces show lack of trustworthiness. The term "business" as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Records are admissible pursuant to section
90.803(6) if the party seeking to introduce them can show that the record was (1) made at or near the time of the event recorded, (2) made by, or from information transmitted by, a person with knowledge, (3) kept in the course of a regularly conducted business activity, and (4) if it was the regular practice of that business to make such a record. Saul v. John D. and Catherine T. MacArthur Foundation,
499 So.2d 917, 920 (Fla. 4th DCA 1986). The purpose of section
90.803(6) is to allow a party to introduce relevant records at trial without having to produce all the persons who had a part in preparing the records. Southern Bakeries v. Florida Unemployment Appeals Commission,
545 So.2d 898, 902 (Fla. 2d DCA 1989); McEachern v. State,
388 So.2d 244 (Fla. 5th DCA 1980); Holley v. State,
328 So.2d 224, 225-226 (Fla. 2d DCA 1976). Section
90.803(6) is derived from Rule 803(6) of the Federal Rules of Evidence....
...ied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying on them, and by a duty to make an accurate record as part of a continuing job or occupation." 6C, Fla. Stat. Ann. § 90.803, at 272 (West 1979) (Law Revision Council Note 1976)....
...e person making the record or the mode of preparation. For example, if a person makes a record in preparation for litigation, it loses its presumption of reliability. See e.g., Garcia v. State,
564 So.2d 124, 128 (Fla. 1990) and Law Council Notes to
90.803(6)....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2006 WL 3733842
...Throughout the trial, and specifically in closing argument, the State limited the child abuse count to these facts; it did not include the touching incidents as part of the child abuse count. [2] Prior to trial, the State filed a "Notice of Intention to Use Hearsay Statement of Child Victim Pursuant to Florida Statute 90.803(23)." The Notice related to the use of statements made by the five-year-old to her grandmother, her mother, her father, and the detective....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1991 WL 265076
...Appellant's counsel objected that the officer's testimony regarding appellant's release date was inadmissible hearsay. However, the trial court overruled the objection. This was error. To overcome a hearsay objection to the officer's testimony, the state was obliged to comply with Section 90.803(6) of the Florida Evidence Code....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1999 Fla. App. LEXIS 15714, 1999 WL 1075099
...Thompson knew in 1989 that the Department was going to acquire that strip of land, right? A. Yes. Q. And it's still your testimony that he never told you that? A. That is correct. In further support of its contention that the letter was admissible, DOT cited section 90.803(6), Florida Statutes (1997)....
...Claussen's testimony by using a letter authored by another *82 person. Subsection (1) does not permit impeachment by use of another's statement. The remaining provisions of section
90.608 are equally unavailing in this context. DOT also asserted that the letter was admissible pursuant to section
90.803(8), Florida Statutes (1997)....
...The letter in this case contained no information compiled by the DOT in the course of its duties; rather, the letter described a prior property owner's objection to the proposed highway expansion. Because the letter was based upon information from an outside source it was inadmissible as a DOT public record under section 90.803(8)....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 1881
...See Griffis v. Hill,
230 So.2d 143 (Fla. 1969), and Parris v. Gavagan,
271 So.2d 816 (Fla. 2d DCA 1972). Though not necessary to our conclusion, and only as a guide on retrial, we also find it was error not to admit the medical notes of Doctor Ford. See section
90.803(4), Florida Statutes (1985), albeit their contents were cumulative and their exclusion harmless error....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 12899, 2011 WL 3586140
...elines set forth in Machado, concluding that there were "particularized guarantees of trustworthiness" based on the language used by Miller and the setting in which the statements were made. The trial court also found the statements admissible under section 90.803(18)(e), Florida Statutes (2009), which allows hearsay statements by co-conspirators in furtherance of the conspiracy....
...ess.'"
787 So.2d at 113 (quoting Lilly,
527 U.S. at 136-37,
119 S.Ct. 1887). Lastly, Appellant argues that to the extent his attorney failed to make the proper objections to the admission of the statements under Crawford or sections
90.804(2)(c) and
90.803(18)(e), his attorney's performance was deficient, and this deficient performance prejudiced him....
...und the statements trustworthy and reliable pursuant to Machado, Appellant cannot show prejudice under Strickland in regards to counsel's failure to object based upon the trial court's sua sponte ruling that the statements were also admissible under section 90.803(18)(e)....
...[6] Because we conclude that the trial court did not err in admitting Miller's statements under the statement against interest hearsay exception and Machado, we decline to address the propriety of the trial court's sua sponte ruling that the statements were also admissible under section 90.803(18)(e).
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 12 Fla. L. Weekly 1946
...Although Palmore's statement may be inadmissible for the purpose of bolstering the victim's testimony, Van Gallon v. State,
50 So.2d 882 (Fla. 1951); Holliday v. State,
389 So.2d 679 (Fla. 3d DCA 1980), this does not mean that the statement is excluded for all purposes. Under section
90.803(18)(b), Florida Statutes (1985), a statement offered against a party, and to which the party has manifested his adoption or belief in its truth, may be admitted as substantive evidence against that party....
...[4] Because Simmons is expressly limited to cases in which the exercise of a constitutional right conflicts with exercise of another constitutional right,
390 U.S. at 394,
88 S.Ct. at 976, it is not applicable in this case. Since these statements may be admitted against Palmore as an adoptive admission under section
90.803(18)(b), we find that the trial court erred in denying the state's motion....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 1992 WL 68865
...s of the jury, when as in this case, Valerie's testimony is the only evidence against the appellant, are without merit. The appellant does admit that portions of the tape are admissible as an excited witness exception to the hearsay rule pursuant to Section 90.803(2), Florida Statutes (1989), but certainly the whole tape was not admissible. The trial court was correct. The information contained on the tape is admissible as excited utterances and spontaneous statements pursuant to §§ 90.803(1) and 90.803(2), Florida Statutes (1989)....
CopyCited 6 times | Published | Florida 5th District Court of Appeal
...Department of Health and Rehabilitative Srvs.,
601 So.2d 1343 (Fla. 3d DCA 1992) to support its argument. In King the mother appealed the final order adjudicating her daughter dependent. The mother alleged that the trial court erred by admitting hearsay statements of two of her other children pursuant section
90.803(23), Florida Statutes....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2005 WL 2175443
...ed offense. The admission of the report was crucial to the State's case, and its admission at trial against Rivera was error. REVERSED and REMANDED for a new trial. PETERSON and SAWAYA, JJ., concur. NOTES [1] §
893.03(2)(a)4, Fla. Stat. (2002). [2] §
90.803(6), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 13316, 2010 WL 3477461
...wn by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s.
90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. §
90.803(6)(a), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1988 WL 97958
...Both the psychologist and the interviewing attorney indicated that the child had become extremely upset when it was suggested that he might testify at trial. The court determined that the assistant state attorney would be allowed to testify as to the child's out-of-court statements, pursuant to section 90.803(23), Florida Statutes....
...This enactment provides a hearsay exception for the statements of child sex offense victims, when there are sufficient safeguards of reliability. A child may be declared unavailable as a witness if participation in the trial would result in a substantial likelihood of severe emotional or mental harm. See section 90.803(23)(a)2b. However, the court must make "specific findings of fact, on the record, as to the basis for its ruling... ." Section 90.803(23)(c)....
...In the present case the court's written order recited the statutory criteria in conclusory terms, without any specification of a factual predicate. The court's oral pronouncements were no more detailed. Although there is sufficient record evidence to support the admissibility of the child's statements pursuant to section 90.803(23), the court's conclusory recitations do not satisfy the procedural requirements which are necessary for admissibility under the statute....
...described in appellant's own admissions. Appellant did not dispute the occurrence of these incidents, but instead pursued a defensive theory of duress. In these circumstances the court's failure to strictly comply with the procedural requirements of section
90.803(23) was harmless, and does not require reversal as it did not affect appellant's substantial rights. See Salter, supra ; section
924.33, Florida Statutes. Appellant also contends that admission of the child's statements pursuant to section
90.803(23) violates her sixth amendment right of confrontation....
...This *1372 concern may be satisfied when the statements of an unavailable declarant are accompanied by sufficient indicia of reliability. [1] See Dutton v. Evans,
400 U.S. 74,
91 S.Ct. 210,
27 L.Ed.2d 213 (1970); cf., Bourjaily v. United States, 483 U.S. ___,
107 S.Ct. 2775,
97 L.Ed.2d 144 (1987). Section
90.803(23) provides a statutory framework for addressing the reliability of a child sex offense victim's out-of-court statements....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2008 WL 4146760
...He then took her into the bedroom and took her pants and underwear off and had sexual intercourse with her. She said he put a pillow case over her head before he had intercourse with her. This statement is clearly inadmissible hearsay and not within the exception for medical treatment. An exception to the hearsay rule, section 90.803(4), Florida Statutes, provides: Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, ......
...ral character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment. Statements of fault, even if uttered contemporaneously with statements made for purposes of medical treatment, are not admissible under section 90.803(4)....
...State,
967 So.2d 1095, 1099 (Fla. 4th DCA 2007) (doctor's testimony that victim knew her attacker "constituted hearsay and was not for the purpose of medical diagnosis"). Clearly, the testimony at issue does not fall within the exception provided by section
90.803(4)....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2001 WL 1266280
...Abreu's first trial, in lieu of live testimony by a key witness, Jeffrey Eckman. The earlier trial ended in a mistrial due to a jury deadlock. We conclude that the admission of the prior trial testimony, although authorized by the evidence code, in section
90.803(22), Florida Statutes (2000), violated Abreu's constitutional right to confront and cross-examine his accuser. *443 Section
90.803(22) was amended in 1998 to read: [T]he following [is] not inadmissible as evidence, even though the declarant is available as a witness: * * * (22) Former testimony.Former testimony given by the declarant which testimony was given as a witness at another hearing of the same or a different proceeding ... if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.... The amended version of section
90.803(22) stripped section
90.804(2)(a), Florida Statutes, of its requirement that the witness be unavailable....
...timony in criminal cases absent a showing of unavailability. The significance of this right is highlighted by the circumstance, here, that at the first trial, jurors could judge Eckman's demeanor, and some of those jurors voted to acquit. As we deem section 90.803(22) unconstitutional in criminal cases, and as there was no showing that the state's witness was unavailable, the use of the prior testimony violated Abreu's right to confront and cross-examine the adverse witness....
CopyCited 5 times | Published | Supreme Court of Florida | 2006 WL 3228789
...erdale, FL, for Appellee/Respondent. WELLS, J. We have on appeal a decision of a district court of appeal declaring invalid a state statute and certifying the following question to be of great public importance: AS IT APPLIES TO A DISABLED ADULT, IS SECTION 90.803(24), FLORIDA STATUTES (2001), VIOLATIVE OF A CRIMINAL DEFENDANT'S *257 RIGHT TO CONFRONT WITNESSES UNDER THE FLORIDA AND UNITED STATES CONSTITUTIONS? State v....
...We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We re-state the certified question as follows: AS IT APPLIES TO A MENTALLY DISABLED ADULT WHOSE NONTESTIMONIAL HEARSAY STATEMENT THE TRIAL COURT DETERMINES MEETS CERTAIN QUALIFICATIONS OF RELIABILITY, IS SECTION 90.803(24), FLORIDA STATUTES (2001), VIOLATIVE OF A CRIMINAL DEFENDANT'S RIGHT TO CONFRONT WITNESSES UNDER THE FLORIDA AND UNITED STATES CONSTITUTIONS? [1] We hold that the statute is constitutional and not in violation of the Confrontation C...
...The teacher asked the victim where the defendant had touched her, and the victim pointed to her vagina. The State filed notice of its intent to use the victim's hearsay statements describing the alleged crime to her teacher and a law enforcement officer under the disabled adult hearsay exception contained in section 90.803(24), Florida Statutes (2001)....
...At the hearing on Hosty's motion to strike the State's notice, both Hosty and the State stipulated that the victim is a disabled adult and that she was competent to testify based upon several reports filed by psychologists. In his motion to strike the State's notice, Hosty argued that section
90.803(24) is facially unconstitutional in light of our decision in Conner v. State,
748 So.2d 950 (Fla.1999). In Conner, we held that section
90.803(24) was facially unconstitutional in violation of the Confrontation Clause as applied to elderly adults but expressly declined to reach the constitutionality of the statute as it applied to disabled adults....
...The State filed a petition for certiorari review to the Fourth District Court of Appeal, and the Fourth District denied the petition. State v. Hosty,
835 So.2d 1202, 1203 (Fla. 4th DCA 2003). The Fourth District agreed with the trial court that *259 the provision for disabled adults in section
90.803(24) is facially unconstitutional because it suffers from the same constitutional shortcomings identified in Conner, namely: (1) the exception applies to a broad class of adult declarants; (2) the exception is broadly applicable to a wi...
...805, 821,
110 S.Ct. 3139,
111 L.Ed.2d 638 (1990). The circumstances must be considered "so trustworthy that adversarial testing would add little to its reliability." Id. It is under this framework that we considered the constitutionality of sections
90.803(23) and (24) in Conner, State v....
...However, in considering the admissibility of nontestimonial hearsay, we may continue to take into account the circumstances indicating the reliability of the statement, in accordance with Roberts. As stated above, we previously considered the constitutionality of sections 90.803(23) and (24), considering the admissibility of hearsay statements made by children and elderly persons. The Court first considered the constitutionality of section 90.803(23) [5] in Perez....
...There, the defendant was charged with the lewd assault of a three-year-old child, and the State attempted to admit hearsay statements made by the child victim about the incident to his mother and the investigating officers. Perez,
536 So.2d at 207. Perez argued that section
90.803(23), under which the State sought to admit the child's hearsay statements, was a violation of the Confrontation Clause. Like the statute at issue in the present case, the child hearsay statute requires that a trial court find that "the time, content, and circumstances of the statement provide sufficient safeguards of reliability." §
90.803(23)(a), Fla....
...ion of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate." Id. We approved the decision of the lower court holding that section
90.803(23) was constitutional, finding that the statutory requirements ensured that the child's hearsay statements were reliable before they were admitted at trial, in accordance with the requirements of Roberts. Perez,
536 So.2d at 209. We again considered section
90.803(23) in Townsend....
...in the accusation. In sum, as noted by the United States Supreme Court in Wright, a court is to use a totality of the circumstances evaluation in determining reliability. Id. at 957-58 (citations omitted). We next considered the constitutionality of section 90.803(24) as it applied to the hearsay statements of elderly persons....
...suffered from poor eyesight, hearing loss, and occasional memory lapses.
748 So.2d at 952. The State sought to admit the statements the victim gave to the police after the crime. The victim was unavailable because he died before trial. We held that section
90.803(24) violated the Confrontation Clause of the United States Constitution as it applied to the hearsay statements of elderly persons because the statute's requirements did not ensure the reliability of the statements. Id. at 958. We also held that the statute was not supported by the strong policy interests present in a child abuse context. In addition, we noted that the statute was different from section
90.803(23) because it encompassed a broader category of declarants and the scope of testimony admissible was broader....
...alyze the statute's constitutionality in permitting those statements under the framework provided in Roberts. First, we note that the mentally disabled adult exception is *262 not a firmly rooted exception to the hearsay rule. As we noted in Conner, section 90.803(24) was enacted in 1995....
...For these reasons, we find that the disabled adult hearsay exception as applied to statements of mentally disabled adults is distinguishable from the elderly adult hearsay exception struck down in Conner and similar to the child hearsay exception upheld in Townsend and Perez. We thus hold that section 90.803(24) is constitutional as applied to this case. The Fourth District held that section 90.803(24) was facially unconstitutional....
...witness either testifies or is unavailable in accordance with the statute. The trial court must "place on the record specific findings indicating the basis for determining the reliability of [the declarant's] statements introduced as hearsay under" section 90.803(24)....
...I concur in the Court's determination that the hearsay exception for statements by mentally disabled adults does not suffer the same defects that led us to invalidate the exception as applied to statements by elderly persons in Conner v. State,
748 So.2d 950 (Fla.1999). When applied to mentally disabled adults, section
90.803(24) is narrower than when it is applied to elderly persons....
...
748 So.2d at 958. The breadth of this definition was one factor in our decision declaring the provision unconstitutional as applied to elderly declarants. In contrast, the term "disabled adult," incorporated from section
825.101(4), Florida Statutes (2005), into section
90.803(24), when narrowed to mental disability encompasses any adult "who suffers from a condition of ....
...prior statements, which would satisfy the Confrontation Clause. Therefore, the constitutionality of the hearsay exception for statements by mentally disabled adults is not ripe for review. I would remand for the trial court to apply the criteria of section 90.803(24), including the different requirements for statements by testifying and unavailable declarants, before addressing the provision's constitutionality. Section 90.803(24) authorizes the admission of hearsay by both testifying and unavailable declarants....
...unconstitutional in a pretrial hearing, and the State sought certiorari, staying the trial. The parties stipulated below that the victim was competent to testify at trial. There has been no finding that she is unavailable as a witness as defined by section 90.803(24)(a)(2)(b), [9] and the majority implicitly *265 acknowledges that she may testify....
...[10] Thus, the "substantial likelihood of severe emotional, mental, or physical harm" that can make a declarant unavailable under section
90.804(24) is not synonymous with unavailability under the Confrontation Clause. At this point, we need not speculate whether the alleged victim will be unavailable for purposes of either section
90.803(24) or the Confrontation Clause....
...decision holding the disabled adult hearsay exception facially unconstitutional; and (3) direct the Fourth District to reverse the trial court order declaring the exception unconstitutional and direct the trial court to determine admissibility under section 90.803(24) before determining whether use of the statements at trial is constitutional under Crawford, Roberts, and our opinion herein....
...t its conclusions, thereby facilitating appellate review of its ruling on what is currently an unsettled area of the law. QUINCE, J., dissenting. I must dissent from the majority's determination that the disabled adult hearsay exception contained in section 90.803(24), Florida Statutes (2001), is valid....
...Furthermore, it cannot be said that such persons' hearsay statements would be more reliable than their in-court testimony. Thus, while the majority's logic works for mentally disabled adults like the unfortunate victim in this case, it does not apply for the broad class of "disabled adults" covered by section 90.803(24)....
...ts, the statute is still applicable to a much broader range of offenses than those offenses covered by the child abuse exception upheld in State v. Townsend,
635 So.2d 949 (Fla.1994), and Perez v. State,
536 So.2d 206 (Fla.1988). [12] As provided in section
90.803(24)(a), hearsay statements describing acts of abuse or neglect, exploitation, battery, aggravated battery, assault, aggravated assault, sexual battery, or any violent act are admissible if the other statutory requirements are met....
...Thus, just as it was problematic in Conner, the majority's mentally disabled adult hearsay exception "would be broadly applicable *268 to a wide variety of crimes and is not restricted to the [disabled adult] abuse context."
748 So.2d at 958. The scope of the section
90.803(24)'s application was cited by this Court as one of the critical differences from the child sexual abuse exception that caused us to strike down the elderly hearsay exception in Conner....
...e is to establish or prove past events potentially relevant to later criminal prosecution). I agree with the majority that the statements that the victim in this case made to the law enforcement officer were testimonial and thus not admissible under section 90.803(24)....
...use they do precisely what a witness does on direct examination; they are inherently testimonial." Davis v. Washington,
126 S.Ct. at 2278. Under the circumstances of this case, I conclude that the admission of either of the victim's statements under section
90.803(24) would violate the defendant's right to confront witnesses under both the Sixth and Fourteenth Amendments to the U.S....
...ANSTEAD, J., concurs. NOTES [1] We rewrite the certified question because this case involves a mentally disabled adult, and we do not address the statute's constitutionality as applied to a physically disabled adult. [2] U.S. Const. amend. VI. [3] Section 90.803(24) states as follows: (24) HEARSAY EXCEPTION; STATEMENT OF ELDERLY PERSON OR DISABLED ADULT. (a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness,...
...e federal and Florida constitutions, we perceive no reason to interpret article I, section 16, of the Florida Constitution any differently than its federal counterpart in regard to this issue." Perez v. State,
536 So.2d 206, 209 n. 4 (Fla.1988). [5] Section
90.803(23), Florida Statutes (2001), is nearly identical to section
90.803(24) and provides, in part: (23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM....
...r the jurisdiction of the district school board. See §
1006.13(1), (3), Fla. Stat. (2005). [12] Both Townsend and Perez involved the hearsay exception for statements of a child victim of sexual abuse or a sexual offense against a child contained in section
90.803(23) of the Florida Statutes....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1988 WL 117545
...The sole evidence that Moody tested positive for cocaine was a lab report prepared by an independent laboratory procured by the City. No one from the laboratory was called as a witness to establish that the lab report was a business record of the laboratory, admissible as an exception to the hearsay rule under section 90.803(6), Florida Statutes (1987)....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2000 WL 1671517
...idence admissible as an exception to the hearsay rule, see Thomas v. State,
711 So.2d 96, 97 (Fla. 4th DCA 1998). Here, the testimony that the victim yelled to her daughter to call the police, "because Ernest picked up a knife," was admissible under section
90.803(2) as an excited utterance exception to the hearsay rule....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1990 WL 175061
...boy said no. The jury convicted the defendant. The law in this state is that uncorroborated hearsay statements cannot be used as the sole evidence to convict. State v. Moore,
485 So.2d 1279 (Fla. 1986). This rule applies to statements admitted under section
90.803(23), Florida Statutes....
CopyCited 5 times | Published | Supreme Court of Florida | 2007 WL 4191972
...as an exhibit of numerous admissions made by the Appellant. See Delacruz v. State,
734 So.2d 1116, 1122 (Fla. 1st DCA 1999) (finding that defendant's prior statements, whether exculpatory or not, were admissible against defendant as admissions under section
90.803(18), Florida Statutes (citing Charles W....
...ial is admissible in evidence against him in later proceedings"). In Billie, the Third *336 District explained that under the Florida Evidence Code, prior testimony is admissible in a subsequent proceeding as an admission by the defendant. See id. ; § 90.803(18), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 17242, 2009 WL 3837159
...The petition reiterated the allegations of domestic violence, and added allegations that the father had sexually abused E.O. and that the mother was aware of the abuse. Prior to the trial on the petition to terminate parental rights, DCF moved to admit E.O.'s and S.O.'s hearsay statements pursuant to section 90.803(23), Florida Statutes (2008)....
...and any future risk of harm to S.O., R.O., and M.O. We do not have to reach this issue because there is competent, substantial evidence to support termination of the parents' rights to all four children under section
39.806(1)(c). Thus, we affirm. Admission of Child Victim Hearsay Evidence Section
90.803(23), Florida Statutes (2008), allows for the admission of child victim hearsay statements where the statements describe an act of child abuse or neglect. Before these statements are admissible, the trial court must conduct a hearing and make a preliminary determination that they come from a trustworthy source and are reliable. §
90.803(23), Fla....
...In this case, the trial court conducted a hearsay hearing prior to trial, as required by the statute, and determined that E.O.'s hearsay statements were reliable and from trustworthy sources. The parties expected E.O. to testify at trial to meet the second requirement of section 90.803(23)....
...tter of her hearsay statements. And, for the reasons discussed below, we do not find any fundamental error. The parties disagree about whether the child victim must testify to the subjectmatter of the hearsay statements to satisfy the requirement in section 90.803(23), or whether testimony on any matter is sufficient....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1988 WL 50675
...The court denied the motions, ruling that sufficient evidence had been adduced to show a conspiracy between the named parties. A discussion of the law surrounding the coconspirator hearsay exception is in order before addressing the first issue defendant raises. Under section 90.803(18)(e), Florida Statutes (1987), hearsay statements made by one member of a conspiracy are admissible against other members of the conspiracy provided the statements were made during the course, and in *19 furtherance of the conspiracy....
...uired to apply this standard in its preliminary determination. The Florida cases, including Morales and Saavedra, which followed James are no longer sound law. We therefore adopt the holding of Bourjaily that "when the preliminary facts relevant to [section 90.803(18)(e)] are disputed, the offering party must prove them by a preponderance of the evidence." 107 S.Ct....
...Brewer,
420 So.2d 932 (Fla. 3d DCA 1982). Having found no authority to the contrary, we find the commentators' arguments to be persuasive in construing section
90.105(1). Accordingly, we hold that a judge, "in making a preliminary factual determination under [section
90.803(2)(e)], may examine hearsay statements sought to be admitted[,]" *22 Bourjaily, 107 S.Ct....
...at 2782, and "give [the evidence] such weight as his judgment and experience counsel." United States v. Matlock,
415 U.S. 164, 175,
94 S.Ct. 988, 995,
39 L.Ed.2d 242 (1974). In the instant case, the trial judge recognized his discretion to accept coconspirator statements subject to determining the elements of section
90.803(18)(e) had been established....
...The conversations were videotaped and later introduced as evidence against the defendant. The defendant, like Romani, argued the murder had already been committed, thus the statements were not made in the course and in furtherance of the murder conspiracy. The court disagreed, finding the videotape was admissible under section 90.803(18)(e)....
...[4] Ibarra offered conflicting testimony regarding when he first met Romani. He first claimed to have met her before the murder, at her clinic, whereupon she informed him of the Medicaid fraud investigation. Later Ibarra stated he met Romani for the first time after the murder. [5] Section 90.803(18)(e), Florida Statutes (1987), provides: A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy....
...tements were made in the course and in furtherance of the conspiracy. Apollo,
476 F.2d at 163. See generally, C. Ehrhardt, Florida Evidence § 803.18f (2d Ed. 1984). What came to be known as an Apollo instruction was included in the last sentence of section
90.803(18)(e) of the Florida Evidence Code, which became effective in 1979....
...Bourjaily,
781 F.2d 539 (6th Cir.1986). See generally, 1 J. Weinstein & M. Berger, Weinstein's Evidence § 104[05] at 104-56 104-63 (1986). [11] Although Apollo was overruled by James, the Apollo instruction lives on in Florida by virtue of its inclusion in Florida Evidence Code section
90.803(18)(e)....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1997 WL 216201
...We deal with these issues separately. 911 Call. The first issue is whether the 911 call from the anonymous caller is admissible at Skolar's trial. Generally, 911 calls are admissible under the excited utterance or spontaneous statement exceptions to the hearsay rule. [3] § 90.803; Allison v....
...State,
679 So.2d 710 (Fla. 1996), cert. denied, ___ U.S. ___,
117 S.Ct. 975,
136 L.Ed.2d 858 (Fla.1997); State v. Jano,
524 So.2d 660 (Fla.1988). The spontaneous statement must be made contemporaneously with the event, while the declarant is actually perceiving the event. §
90.803(1)....
...The call was made several hours prior to Robbins's murder, and it did not involve the murder at all. Rather, it involved self-serving statements by Skolar of Robbins's alleged physical abuse. It was not made as the result of a startling or stressful event, and it therefore cannot qualify under § 90.803 as either a spontaneous statement or an excited utterance. The fact that a call is placed on a 911 line does not, standing alone, qualify it for admission under § 90.803....
...A district court of appeal can exercise certiorari review over a nonfinal pretrial order where the state would otherwise be deprived of the opportunity for review. State v. Bradford,
658 So.2d 572 (Fla. 5th DCA 1995). [2] Skolar's mother died of cancer prior to the hearing. [3] See section
90.803, which provides: (1) Spontaneous Statement....
...ate its lack of trustworthiness. (2) Excited Utterance. A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. (emphasis supplied) [4] Section 90.803(1) provides for an exception to the contemporaneous requirement, and statements may be made "immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness." The length of time...
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1997 WL 235121
...While it is difficult to categorize any trial error as purely legal, "a trial judge's discretion progressively diminishes as an issue becomes increasingly legal." Tri-Pak Machinery,
644 So.2d at 119-120, n. 1. The trial court in this case admitted Dr. Ferrer's report under section
90.803(6), Florida Statutes, the business records exception to the hearsay rule. Section
90.803(6) provides in pertinent part:
90.803 Hearsay exceptions; availability of declarant immaterial.......
...1st DCA 1996). Where the parties agree that the testimony of the records custodian is not necessary, medical records may be introduced into evidence under the business records exception to the hearsay rule, without the testimony of a qualified witness as to the section 90.803(6)(a) predicate....
...Ficarra,
618 So.2d 312, 313-314 (Fla. 4th DCA 1993). At the trial of this cause, counsel for DOC objected to admission of Dr. Ferrer's report, but raised no objection to the lack of a records custodian or other qualified witness to lay the predicate required by section
90.803(6)(a)....
...rd was not supplied by a person acting within the course of a regularly conducted business activity. We conclude the absence of a records custodian does nothing to impair the trustworthiness, hence the admissibility, of Dr. Ferrer's report. Further, section 90.803(6) contains no provision that, to be admissible, the opinions contained in a written medical report must be expressed in terms of reasonable medical probability....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2008 WL 582504
...It held that "admissions by acquiescence or silence do not implicate the Confrontation Clause." Id. at 672. Accordingly, based on Globe, it is now clear that it would have been permissible for the trial court to admit into evidence any statements by codefendant Cuesta that qualified as adoptive admissions by Hernandez. See § 90.803(18)(b), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2003 WL 728398
...probation. Accordingly, we reverse and vacate the revocation order, the judgment, and the sentence, and remand for the trial court to restore Mr. Colwell to probation. Reversed and remanded with instructions. FULMER and KELLY, JJ., Concur. NOTES [1] §
90.803, Fla. Stat. (2001) [2] Had the trial court ruled that the hearsay fell within the excited utterance exception, we doubt whether we could have sustained that decision based on Bales v. State,
793 So.2d 87 (Fla. 2d DCA 2001), and section
90.803(2)....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2000 WL 235126
...Bradford,
658 So.2d 572 (Fla. 5th DCA 1995). First, we agree with the trial court that Teal's statement to the physician identifying her assailant is not excepted from the hearsay rule because it was not given for purposes of diagnosis or treatment. See §
90.803(4), Fla....
...3d DCA 1997) (holding 911 tape identifying boyfriend as assailant admissible as an excited utterance), rev. denied,
717 So.2d 542 (Fla.1998). Petition for Writ of Certiorari GRANTED and order QUASHED to the extent that the order excludes 911 tape evidence. PETERSON, and GRIFFIN, JJ., concur. NOTES [1] §
90.803(2), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2003 WL 21297232
...Appellee's ("Mother's") eight-year-old stepdaughter. These allegations formed the primary basis for Father's request that custody be changed. *1234 Father sought to introduce the two reports under the business records exception to the hearsay rule, section 90.803(6), Florida Statutes (2002)....
...hin an exception to the hearsay rule. §
90.805, Fla. Stat. (2002); Harris,
495 So.2d at 809. Here, no exceptions apply. [1] For these same reasons, the documents would not have been admissible under the public records exception to the hearsay rule, section
90.803(8), Florida Statutes (2002)....
...r brief, rather than by separate motion. McCreary v. Florida Resid. Prop. & Cas. Joint Underwriting Ass'n.,
758 So.2d 692 (Fla. 4th DCA 1999). AFFIRMED. THOMPSON, C.J., and PLEUS, J., concur. NOTES [1] The victim's statement was not admissible under section
90.803(23), Florida Statutes, because no showing was made that the victim was "unavailable." §
90.803(23)(a)2b, Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2004 WL 1196559
...Walgreens store to testify that company policy requried Walgreens to destroy prescription records after five years. The trial court excluded this evidence on the ground that the witness was not a business records custodian qualified to testify under section 90.803(7), Florida Statutes, as to the "absence of entry in records of regularly conducted activilty." Appellant was not, however, attempting to show absence under this statute of "a regularly conducted activity to prove the nonocurrence or n...
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2004 WL 1354252
...cross-examination. The phone conversation included information relating to the charged crimes which the State argued was adopted by admissions by Hernandez through his silence and by statements he made in response to the co-defendant's remarks. See, § 90.803(18)(b), Fla....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal
...as over eleven years old, the trial court, relying on Department of Health & Rehabilitative Services v. M.B.,
701 So.2d 1155 (Fla.1997), admitted D.W.'s prior inconsistent statements as substantive evidence. M.B. is based on the hearsay exception of section
90.803(23), Florida Statutes, which is limited to children *1146 who are eleven years of age or less....
...to D.W., the trial court state: "It is this Court's position that if a court were prohibited from extending the reasoning in Department of Health and Rehabilitative Services v. M.B . to children over the age of 11, the law would be creating an absurdity." [2] The trial court recognized that section 90.803(23) does not apply to children over eleven years of age, but nonetheless opted to disregard the statute. We would like to remind the trial court that although it may disagree with the statute and believes that the eleven-year-old age limit creates an "absurdity," it was still bound to follow the statute. Any amendments to section 90.803(23) must be made by the legislature, not the judiciary.
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1991 WL 120781
...The State petitions for a writ of certiorari to quash the trial court's order excluding a child victim's hearsay statements from introduction into evidence at trial. The question presented is whether a child's hearsay statements which qualify for the child victim hearsay exception, § 90.803(23), Florida Statutes (1989), must be excluded from evidence whenever the child is able to testify fully and completely at trial, on the ground that admission of the child's prior consistent statements would constitute impermissible bolstering of the child's testimony. We grant the writ and quash the order under review. Defendant Jaimes Pardo is charged with seven counts of capital sexual battery on a child who was seven years of age at the time of the events in question. Pursuant to subsection 90.803(23), the State filed notices of intent to rely on hearsay statements made by the child victim to several individuals....
...Raquel Bild-Libbin, and state attorney children's center interviewer Merci Restani. At the conclusion of the hearing, the court found that the child's statements made to the three witnesses contained sufficient indicia of reliability to render them admissible pursuant to subsection 90.803(23)....
...State,
577 So.2d 956 (Fla. 5th DCA 1991). Kopko holds that where the child victim is able to testify fully regarding the circumstances of the alleged sexual abuse, the child's prior consistent statements may not be introduced, even though the criteria of subsection
90.803(23) are satisfied....
...In the present case there were sound reasons to disagree with the Kopko decision, and the trial court was entitled to do so. As a second preliminary matter, we note that the order below does not involve any ruling on the admissibility of statements made for purposes of medical diagnosis or treatment under subsection
90.803(4), Florida Statutes (1989). See generally State v. Ochoa,
576 So.2d 854 (Fla. 3d DCA 1991). The issue before us involves only the proper interpretation of subsection
90.803(23). [1] Turning to the merits of the petition, subsection
90.803(23) is a hearsay exception for child victims of sexual or other abuse who are eleven years of age or younger. It was added to the Evidence Code in 1985, see ch. 85-53, § 4, Laws of Fla., and placed within section
90.803 a group of hearsay exceptions which may be invoked whether or not the hearsay declarant in this case, the child is available to testify at trial. [2] As a statutory matter, the text of subsection
90.803(23) explicitly provides that the child's hearsay statements qualify for the exception if the child testifies. Id. §
90.803(23)(a)(2). In the present case, once the court determined that the criteria of subsection
90.803(23) had been satisfied, the hearsay rule was overcome and the child's statements to the three specific individuals could not be excluded on the ground that they are hearsay....
...d. Where the child's out-of-court statements are *1228 needed to provide evidence of any aspect of the crime or related events which the testifying or unavailable child cannot adequately supply, such out-of-court statements are available pursuant to section 90.803(23)....
...the child victim's version of events can be submitted by the state to the jury once unless the defense opens the door to more. Kopko,
577 So.2d at 962-63 (emphasis added). We are unable to subscribe to the reasoning of the Kopko court. The limitation which has been read into subsection
90.803(23) runs counter to the plain language of the statute. By its placement in section
90.803, as well as by the explicit language of subsection
90.803(23) itself, a child victim's hearsay statement cannot be objected to on hearsay grounds where the criteria of subsection
90.803(23) are met whether or not the child testifies at trial....
...We do not in any way intimate a view on the merits of any such motion. We certify express and direct conflict with Kopko v. State . We certify that we have passed on the following question of great public importance: WHERE A CHILD VICTIM'S HEARSAY STATEMENTS SATISFY SUBSECTION 90.803(23), FLORIDA STATUTES (1989), AND THE CHILD IS ABLE TO TESTIFY FULLY AT TRIAL, MUST THE HEARSAY STATEMENTS BE EXCLUDED SOLELY BECAUSE THEY ARE PRIOR CONSISTENT STATEMENTS BY THE CHILD, OR IS THE TEST FOR EXCLUSION THAT FOUND IN SECTION...
...STATUTES (1989)? Certiorari granted; question certified; conflict certified. NOTES [1] As explained in Ochoa, statements by a child declarant for purposes of medical diagnosis or treatment ordinarily qualify for the hearsay exception set forth in subsection 90.803(4)....
...Under a traditional analysis, however, that hearsay exception is limited to those statements deemed necessary for purposes of medical diagnosis or treatment and ordinarily does not apply to the child's hearsay statements identifying the perpetrator. It appears that the State has proceeded under subsection 90.803(23) with respect to the rape treatment center physician in order to utilize the broader scope of the hearsay exception under subsection 90.803(23)....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1991 WL 116853
...d collectively, did not influence the outcome of the trial. State v. DiGuilio,
491 So.2d 1129 (Fla. 1986). Second, the hearsay evidence used to corroborate the in-court testimony of the child-victim of sexual abuse was properly admitted. Pursuant to section
90.803(23), Florida Statutes (1989), the trial court conducted a side-bar hearing where it determined that the time, content, and circumstances of the hearsay statements established their trustworthiness....
CopyCited 5 times | Published | Supreme Court of Florida | 2008 WL 450398
...2d DCA 1997) ("[T]he state must furnish proof of ... the date that the defendant was released from prison imposed for the last felony conviction...."); §
775.084(3)(a)(4), Fla. Stat. (2001) (mandating a preponderance-of-the-evidence standard). Florida's business-records exception appears in section
90.803(6)(a), Florida Statutes (2004)....
...Additionally, the proponent is required to present this information in one of three formats. First, the proponent may take the traditional route, which requires that a records custodian take the stand and testify under oath to the predicate requirements. See § 90.803(6)(a), Fla....
...prove the defendant's release date by a preponderance of the evidence). Third and finally, since July 1, 2003, the proponent has been able to establish the business-records predicate through a certification or declaration that complies with sections
90.803(6)(c) and
90.902(11), Florida Statutes (2004)....
...erned here with an affidavit prepared for use in a particular case masquerading as a business record. " (emphasis supplied)). Third, the DOC letter does not state that it was drafted "[b]y or from information transmitted by a person with knowledge." § 90.803(6)(a), Fla....
...of its regularly conducted activities. See, e.g., Gray,
910 So.2d at 869-70. In Yisrael, the State could have secured the admission of the attached Crime and Time Report as a business record if it had supplied the authentication required by sections
90.803(6) and
90.902(11). See, e.g., Parker v. State,
973 So.2d 1167, 1168-69 (Fla. 1st DCA 2007) (holding that a DOC Crime and Time Report is admissible as a business record where a DOC records custodian supplies a certification that strictly complies with sections
90.803(6) and
90.902(11), Florida Statutes), notice invoking discretionary jurisdiction filed, No....
...the ordinary course of a regularly conducted business activity; or (4) created as a regular practice. B. The Public-Records Exception The State also contends that the DOC release-date letter, in and of itself, is admissible as a public record under section 90.803(8), Florida Statutes (2004)....
...s generally easier to obtain admission as a public record. See Ehrhardt, supra § 803.8, at 905. For example, in contrast to business records, the State is not required to create public records at or near the time of the memorialized matter. Compare §
90.803(6), Fla. Stat. (2004), *499 with §
90.803(8), Fla. Stat. (2004). Further, an evidentiary proponent may easily authenticate public records by requesting that the State supply the record under seal. See §
90.902(1), Fla. Stat. (2004). "Public record," as used in section
90.803(8), only encompasses two types of records. The first type includes records setting forth "the activities of the office or agency." §
90.803(8), Fla. Stat. (2004); Ehrhardt, supra § 803.8, at 906. And the second type includes records setting forth "matters observed pursuant to [a] duty imposed by law as to matters which there was a duty to report." §
90.803(8), Fla....
...s the DOC uses to maintain accurate release dates for its inmate population. See, e.g., Parker,
973 So.2d at 1168-69; Desue,
908 So.2d at 1117-18; Gray,
910 So.2d at 869. Thus, the release-date letter alone is not admissible under the first prong of section
90.803(8) because it does not memorialize a DOC activity....
...mates' crimes, sentences, and release dates. See §
945.04(1), Fla. Stat. (2001); Parker,
973 So.2d at 1168-69; Desue,
908 So.2d at 1117-18; Gray,
910 So.2d at 869. Therefore, the release-date letter alone is not admissible under the second prong of section
90.803(8) because it does not memorialize a matter observed and recorded pursuant to a legal duty. In contrast, the Crime and Time Report attached and included in exhibit C, which the parties and the Fourth District inadvertently overlooked in the discussion below, is a public record. See §
90.803(8), Fla....
...levant information contained in Mr. Yisrael's attached Crime and Time Report. Therefore, the combined record, not the release-date letter itself, was admissible as a public record, which the records custodian properly authenticated under seal. See §§
90.803(8),
90.902(1), Fla....
...ate result because, apparently unknown to appellate counsel and the Fourth District, the release-date letterwritten under sealprovided in this case was simply used as a permissible means of authenticating an attached Crime and Time Report. See §§
90.803(8),
90.902(1), Fla....
...Finally, we caution that in appropriate cases, both the business- and public-records exceptions are subject to "trustworthiness" exclusions (i.e., if the records despite their otherwise admissible status show a lack of trustworthiness, courts may deem the records inadmissible). [10] See §§ 90.803(6)(a), 90.803(8), Fla....
...In the future, the State and the DOC should prove recidivist defendants' predicate-offense release dates through Crime and Time Reports, and should use one or both of the two permissible means of authenticating these reports: (1) business-records certification under sections
90.803(6)(c) and
90.902(11); or (2) public-records authentication under seal as provided by section
90.902(1). See Parker,
973 So.2d at 1168-69; §§
90.803(6)(c),
90.902(1),
90.902(11), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2006 WL 20470
...Farber's deposition, claimant moved to strike all surveillance videotapes and reports, based upon both purported discovery violations and the lack of any foundation for their admission into evidence as an exception to the hearsay rule under the business records exception. See § 90.803(6), Fla....
...exception, Dr. Farber's opinion testimony may have been substantially compromised by his reliance on such information. Thus, if it were not shown that the disputed information was kept in the regularly conducted practice of the business activity, as section 90.803(6) requires, it is highly questionable that this is the type of material an expert would reasonably rely on to support the opinion expressed....
...While the JCC did not expressly state that the surveillance information kept by Ferlanti was inadmissible hearsay, her comments clearly indicated that, without the testimony of the persons who actually conducted the surveillance, it would not qualify as a business exception to the hearsay rule. Section 90.803(6), however, does not require as a predicate to the evidence's admission, as the JCC apparently believed, that the persons employed by the investigative agency who performed the surveillance must themselves testify. The foundational elements for admission under section 90.803(6)(a) compel a showing that the business record was: (1) made at or near the time of the event; (2) by or from information transmitted by a person with knowledge; (3) kept in the course of a regularly conducted business activity; and (4) that it was the regular practice of that business to make such a record....
...If the initial supplier of information is not acting within the course of business, the information in the record cannot qualify for admission. For example, if a third-party witness is quoted in a business record concerning a particular fact, the evidence of that statement is not admissible under section 90.803(6), although it may be admissible under another exception....
...He also testified that the records of the surveillance he had brought with him were kept in the regular course of the business. Ferlanti further stated that the investigators' handwritten notes were transcribed verbatim into typewritten reports. Such testimony satisfied the section 90.803(6) foundational requirement that they be made by or from information transmitted by a person with knowledge....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1999 WL 77245
...her, or that he engaged in disruptive behavior after his arrest. Reversed and remanded for further proceedings. PARKER, C.J., and WHATLEY, J., Concur. NOTES [1] This statement was not objected to, and was properly admitted into evidence pursuant to section 90.803(18), Florida Statutes (1995).
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1989 WL 12444
...itted in the Johns case). Because the orders at bar were not final, and entered by hearing officers of the Division of Administrative Hearings, the only conceivable basis on which they could be admitted into evidence is pursuant to the provisions of Section 90.803(8), Florida Statutes (1983), authorizing the admission of public records under the following circumstances: (8) PUBLIC RECORDS AND REPORTS....
...the Division is separately defined under section
120.52(6). Thus, we find nothing within the structure of Chapter 120 which would lead us to the conclusion that the Division, when acting as an adjudicative body, is a public agency for the purpose of section
90.803(8), regarding "matters observed pursuant to duty imposed by law as to matters which there was a duty to report." The powers and responsibilities of the hearing officers of the Division of Administrative Hearings are set forth under Sections
120.57 and
120.65, Florida Statutes (1983 & Supp....
...he policy-making functions normally ascribed to an administrative agency. Contrast the facts at bar with those in Desmond v. Medic Ayers Nursing Home,
492 So.2d 427 (Fla. 1st DCA 1987) (on rehearing), in which this court held admissible, pursuant to section
90.803(8), a report prepared by an epidemiologist, noting that the report was admissible pursuant to the public records exception to the hearsay rule, since it was prepared pursuant to a statutory duty, requiring the Department of Health and Rehabilitative Services to conduct annual inspections of nursing homes. We are therefore of the view that the Division is not an agency within the meaning of section
90.803(8); [4] consequently the Division's order should not have been admitted into evidence. In addition, nonfinal orders are also inadmissible under Federal Rule of Evidence 803(8), after which section
90.803(8) has generally been patterned, [5] because said orders lack trustworthiness....
...(Emphasis added.) Federal courts have interpreted subsection (C) of this rule to permit admission of factual findings. See Chandler v. Roudebush,
425 U.S. 840,
96 S.Ct. 1949,
48 L.Ed.2d 416 (1976); United States v. School Dist. of Ferndale, Mich.,
577 F.2d 1339 (6th Cir.1978). Although Section
90.803(8), Florida Statutes, is modeled after the federal rule, subsection (C) is omitted from the Florida Statute....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2006 WL 305439
...The prosecutor then asked the deputy to relate what J.A.S.'s father had told him that night. Again, defense counsel objected on hearsay grounds. The prosecutor replied that the father's statement fell under the excited utterance exception to the hearsay rule. See § 90.803(2), Fla....
...against interest because it had proved the corpus delicti with the father's hearsay statements and with the photographs. The court overruled J.A.S.'s hearsay objection, finding that the hearsay exception for admissions against interest applied. See § 90.803(18)(a)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 114
...Accordingly, the victim's prior consistent statements were admissible as non-hearsay under Section
90.801(2)(b) to refute a charge of recent fabrication. And, had there been no effort on the part of the defense to establish recent fabrication, the victim's statements were admissible under Section
90.803(1) and (2), [1] as both spontaneous statement and excited utterance, since the record reflects the victim's statement to Ms....
...ection, and thus unnecessarily prolonging and complicating the sentencing hearing. In recent years, sentencing proceedings have become increasingly complex and time consuming. I believe that our holding may be used to compound the problem. NOTES [1] § 90.803, Fla. Stat. (1983), provides in relevant part: 90.803 Hearsay exceptions; availability of declarant immaterial....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2002 Fla. App. LEXIS 19167, 2002 WL 31870178
...As the father acquiesced to the delays in this case, he has not shown that he was denied due process. At the adjudicatory hearing, the father objected to the admission of the younger child's hearsay statements of sexual abuse on the ground that DCF failed to prove the reliability of the statements as required by section 90.803(23). The court held a hearing to determine whether the circumstances surrounding the statements provided "sufficient safeguards of reliability." § 90.803(23)(a)(1)....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 18324, 2010 WL 4861739
...Moreover, a simple denial is insufficient to impeach the validity of service. Telf Corp. However, in this case, Ms. Bennett raised more than her own sworn denial. The process server's own notes, an admission against the interest of his principal, see § 90.803(18)(d), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1995 WL 456265
...The evidence adduced here included hearsay evidence of a probation officer's statements, but also included appellant's testimony which supported a violation *1166 of condition (1). Moreover, appellant's probation file was admitted as an exception to the hearsay rule as a business record. See § 90.803(6), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1994 WL 419074
...§
90.403, Fla. Stat. (1991); see Jenkins v. State,
533 So.2d 297 (Fla. 1st DCA 1988), rev. denied,
542 So.2d 1334 (Fla. 1989). The appellant also argues that it was error to the extent that the trial court admitted hearsay statements made by Kay pursuant to section
90.803(18)(e), Florida Statutes (1991), the coconspirator exception to the hearsay rule....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 11 Fla. L. Weekly 1763
...First, he claims the trial court erred in admitting a statement of the rape victim shortly after the victim was raped. We disagree. The statement was admissible under the excited utterance exception to the hearsay rule. Appell v. State,
250 So.2d 318 (Fla. 4th DCA), cert. denied,
257 So.2d 257 (Fla. 1971); §
90.803(1), Fla....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2004 WL 1781346
...version of his previous trial testimony for impeachment and rebuttal purposes. The State has appealed. From the standpoint of the Evidence Code, the defendant's prior testimony is admissible against the defendant at the retrial, as an admission. See § 90.803(18), Fla....
...ate to call the defendant to the stand in the event of a criminal retrial, when in reality, the State has no ability to place the defendant on the stand. It would likewise be illogical to read this rule as erasing the hearsay exceptions contained in section 90.803, Florida Statutes. We conclude that Rule 3.640(b) does not apply to the prior testimony of a criminal defendant, and that the defendant's prior testimony is admissible under subsection 90.803(18), Florida Statutes....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1990 WL 37419
...nt), and Dr. Jerome Poliacoff (child psychologist). After receiving this evidence and hearing argument of counsel, the trial court ruled that it would "allow this information ... to be admitted in the [sic] evidence during the trial pursuant to [§] 90.803 sub....
...to testify via closed-circuit television provided the requirements established by Section
92.54, Florida Statutes (1987), as interpreted by this opinion, are followed. B Turning next to the trial court's ruling admitting in evidence C.S.'s five hearsay statements, Section
90.803(23)(a), Florida Statutes (1987), provides that the out-of-court statements of a child abuse victim who is eleven years of age or less, as here, may be admitted in evidence as an exception to the hearsay rule, provided two conditions are met....
...physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate." § 90.803(23)(a)(1), Fla. Stat. (1987). Second, the child must either (a) testify at trial, as here, or (b) be otherwise unavailable as a witness, provided other safeguards not relevant here are observed. § 90.803(23)(a)(2)(a), (b), Fla....
...In the instant case, the defendant's Sixth Amendment confrontation right was violated by the admission in evidence of C.S.'s five hearsay statements accusing the defendant of sexual abuse. This is so because the trial court made no finding, as required by Section 90.803(23)(a)(1), Florida Statutes (1987), that "the time, content and circumstances of the statement provide sufficient safeguards of reliability"; to the contrary, the trial court expressly declined to give any reasons on the record for admitting these statements....
...18,
87 S.Ct. 824, 828,
17 L.Ed.2d 705 (1967), and, accordingly, reverse and remand the cause for a new trial. Upon remand, however, the state may, if it chooses, seek to introduce C.S.'s hearsay statements described above provided the requirements of Section
90.803(23)(a), Florida Statutes (1987), as interpreted in this opinion, are followed....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1990 WL 129955
...1986) (appellant's statement that "she wasn't going back to jail" relevant and admissible to prove appellant's motive for killing police officer), cert. denied, Jackson v. Florida,
483 U.S. 1010,
107 S.Ct. 3241,
97 L.Ed.2d 746 (1987). Douglas's statement was also admissible as an admission against interest under section
90.803(18), Florida Statutes (1987). [2] The fact that Dennis was the alleged "triggerman" in the Estefan shooting does not affect the statement's admissibility. "The term `admission' in section
90.803(18) is not limited specifically to those admissions made by the defendant himself....
...a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity. [2] Section 90.803(18), setting forth a hearsay exception for admissions where the availability of the declarant is immaterial, defines the term as follows: (a) His own statement in either an individual or a representative capacity; * * * * * * (e) A sta...
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 16292, 2010 WL 4226262
...le.'" Yaun,
898 So.2d at 1017 (quoting Hercule v. State,
655 So.2d 1256, 1257 (Fla. 3d DCA 1995)). Sage,
988 So.2d at 151-52. While the victim had her bank statements with her in court, a predicate was not laid for their authenticity or reliability. Section
90.803(6)(a), Florida Statutes (2009), requires that the records custodian or other qualified bank employee testify to the necessary predicate before bank statements may be admitted into evidence....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1990 WL 183817
...." [1] Six weeks later, J. informed his therapist, in response to a question regarding defendant's location, "Mommy was in the big bed." Both statements were admitted over timely objections. The first was admitted as an excited utterance pursuant to section
90.803(2), Florida Statutes (1989) and the second was ruled admissible under section
90.803(23), Florida Statutes (1989), a hearsay exception for statements of child victims of sexual abuse. Even if the first statement was not properly admitted as an excited utterance, see State v. Jano,
524 So.2d 660 (Fla. 1988), we hold that it was admissible under section
90.803(23), as was the second statement. Section
90.803(23), Florida Statutes (1989) [2] states: (23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM OF SEXUAL ABUSE OR SEXUAL OFFENSE AGAINST A CHILD....
...s of the abuse. [3] We disagree. The purpose of the statute is to protect victimized children "from emotional harm and trauma occasioned by judicial proceedings." See Chapter 85-53, Laws of Florida, setting forth the legislature's intent in adopting section 90.803(23)....
...is a victim and his statements were properly admissible in Russell's trial. Alternatively, we find that the abuse of A. in the presence of J. constituted lewd and lascivious acts in J.'s presence. Accordingly, J. is a victim of lewd and lascivious acts committed in his presence and his statements are admissible under section 90.803(23)....
...offenses, but also to victims of neglect. See Chapter 90-174, Laws of Florida. [3] In defendant's answer brief, Russell attempts to raise, for the first time, an issue regarding the sufficiency of the trial court's findings which are required under section 90.803(23)....
...s point. See Stone v. State,
547 So.2d 657 (Fla. 2d DCA 1989). [4] See Ehrhardt, Florida Evidence § 803.23(a) (2d ed.) Supp. 1989. Ehrhardt states that the inclusion in the statute of the language "performed in the presence of" was intended to make section
90.803(23)(a) applicable to lewd and lascivious acts where not touching occurred....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1994 Fla. App. LEXIS 11371, 1994 WL 660761
...In this juvenile dependency case, appellant, the natural father of all three children, seeks review of orders adjudicating the children dependent and placing them in foster care. We conclude that the trial court failed to make findings sufficient to comply with section 90.803(23) of the Florida Evidence Code ("Hearsay Exception; Statement of Child Victim") before permitting testimony regarding previous out-of-court statements made by one of the children who was alleged to have been a victim of sexual abuse at the hands of appellant....
...Macyko was asked what R.R. had told her, the attorney representing the mother objected on the ground that the question sought to elicit hearsay statements of the child. During the course of the ensuing discussion, it became clear that the basis for the objection was section 90.803(23) of the Florida Evidence Code; and that all concerned, including the trial court, understood the basis for the objection....
...The trial court's ruling manifests cognizance that, before testimony regarding the statements made by R.R. could be admitted, it was required to find "that the time, content, and circumstances of the statement[s] provide[d] sufficient safeguards of reliability" (§ 90.803(23)(a)1., Fla.Evid.Code); and that (because she did not testify) R.R. was "unavailable as a witness [and] ... there [was] other corroborative evidence of the abuse ..." (§ 90.803(23)(a)2.b., Fla.Evid.Code). The trial court was also clearly aware that it was obliged to "make specific findings of fact, on the record, as to the basis for its ruling... ." § 90.803(23)(c), Fla.Evid.Code....
...And now, again, I think we also have to further evaluate the time, content, and the circumstances as we're going through this, and so that is certainly subject to further but at this time, I'm satisfied, unless something else develops, that these statements are admissible. No other findings were made pursuant to section 90.803(23). Appellant argues that the trial court made insufficient findings to satisfy the prerequisites to admissibility of R.R.'s statements set forth in section 90.803(23)(a)1....
...nt failed to object to the sufficiency of the trial court's findings and, therefore, the issue has not been preserved for review; and (2) assuming the issue has been preserved, the trial court's findings are sufficient to satisfy the requirements of section 90.803(23)....
...1994), which decision, obviously, had not been rendered when the trial court ruled upon appellant's objections. Hopkins requires that we reverse. In Hopkins, the appellant argued, among other things, "that the trial court failed to make sufficient findings under section 90.803(23) to admit the out-of-court statements of the child victim." Id....
...dge's findings as to that reliability. Counsel was not required to specify each finding of fact to which he was objecting." Id. It also held to be legally insufficient to satisfy the requirement that the trial court "make specific findings of fact" (§
90.803(23)(c)) comments substantively indistinguishable from those made by the trial court in this case. Id. at 1376-77. Accord Feller v. State,
637 So.2d 911 (Fla. 1994); State v. Townsend,
635 So.2d 949 (Fla. 1994). *254 In Hopkins, the court did hold that a failure to make the "specific findings of fact" required by section
90.803(23) is subject to a harmless error analysis....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...ruary, 1979. This allegation was proved through the testimony of a probation officer who was custodian of appellant's file. He testified that there were no monthly reports in the file dated after January 31, 1979. This testimony was admissible under § 90.803(7) Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1998 WL 798827
...State,
688 So.2d 913, 915-16 (Fla.1997). Appellant properly objected to the introduction of the written estimates as hearsay, because they were being offered into evidence to prove the matter asserted, the amount of restitution. The estimates do not qualify under section
90.803(6), Florida Statutes, which provides a hearsay exception for business records....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1990 WL 70616
...est. Bradley v. State,
513 So.2d 112 (Fla. 1987). We are satisfied that the record adequately reflects that both counsel were absent at 10:45 a.m. when the jury made its request. The trial court's failure to comply with the statutory requirements of section
90.803(23), Florida Statutes (1987), also warrants reversal....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1999 WL 360150
...establish that he was the person who sold cocaine to the undercover officer, and that he possessed the cocaine; and second, the cocaine and the laboratory test results should not have been admitted in evidence under the business records exception of section 90.803(6), Fla....
...Reid did not actually analyze the sample. However, in her capacity as supervisor of the chemistry section that prepares the reports, Reid was the custodian of the records for the laboratory and thus she was a proper person to authenticate its records pursuant to section 90.803(6)....
...identiary issue relating to the laboratory report. The only objection raised at trial concerning the admissibility of the laboratory report was Mr. Williams' contention that the state had failed to qualify the report as being a business record under section 90.803(6)(a), Florida Statutes (1997)....
...federal business records exception rule because this exception was "firmly rooted"). Cf. United States v. Garnett,
122 F.3d 1016 (11th Cir.1997). NOTES [1] §
893.13(1), Fla. Stat. [2] §
893.13(6)(a), Fla. Stat. [3] §
893.147(1)(b), Fla. Stat. [4] Section
90.803(6)(a), Florida Statutes provides: [T]he following are not inadmissible as evidence......
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1989 WL 52128
...denied the motion to sever. The court could not have done so without finding the statement admissible against him. We have been unable to determine a basis for this finding. Appellee argues that the statement was admissible against Miller, Jr. under section 90.803(18)(e), Florida Statutes (1987), the coconspirator exception to the prohibition against hearsay....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2015 WL 968556
the absence of corroborative evidence under section
90.803(23), Florida Statutes (2013), the trial court
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2003 WL 728887
...State,
810 So.2d 901 (Fla. 2002); §
90.801(2)(c), Fla. Stat. (2001). [1] Nor do we find a sufficient predicate was established for the introduction of this out-of-court description (contained within a call to the police by an eye-witness neighbor) as an excited utterance. §
90.803(2), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1999 WL 168903
...appellant's statements. It seems that neither of the witnesses involved in the purchase of property which had been stolen was able to identify appellant prior to trial. *500 Admissions by a party opponent are admissible as substantive evidence. See § 90.803(18), Fla.Stat.; Tarver v....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2008 WL 724024
...fered to prove the truth of the matter asserted, i.e., that D.M.L. was there. Instead, it was offered to prove Cory's state of mind, i.e., that he was looking for D.M.L., or to prove or explain Cory's subsequent act of swinging the bat at D.M.L. See § 90.803(3) (providing that a hearsay exception exists when "[a] statement of the declarant's then-existing state of mind" is offered to "[p]rove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when su...
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 3342, 2010 WL 934029
...The standard of review on the admission of evidence is abuse of discretion as limited by the rules of evidence. Hudson v. State,
992 So.2d 96, 107 (Fla.2008). Unless it falls within a statutory exception, hearsay evidence is inadmissible. See §
90.802, Fla. Stat. (2008). Section
90.803(5), Florida Statutes (2008), provides an exception to the hearsay rule when a witness cannot recall matters of which he or she previously had knowledge....
...To be admitted into evidence, the past recollection recorded must be offered by the witness who is either devoid of a present recollection, or possessed of an imperfect present recollection and desires to use a memorandum of a past recollection. See Kimbrough v. State,
846 So.2d 540, 543 (Fla. 4th DCA 2003); §
90.803(5)....
...er was fresh in the witness's memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party. § 90.803(5), Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1993 WL 75785
...We also affirm, without discussion, the trial court's disposition of Seifert's attack upon the collateral crime evidence. The only contention Seifert asserts warranting extensive response stems from the receipt of hearsay testimony which he contends did not meet the requirements of section 90.803(23), Florida Statutes (1989)....
...y the trial court. In any case, we have concluded that a deficiency in the trial court's hearsay reliability determinations was harmless error. Before statements attributed to a child are sanctioned as evidence under the statutory hearsay exception, section 90.803(23) requires the trial court to conduct a hearing outside the presence of the jury to determine whether the "time, content, and circumstances of the statement provide sufficient safeguards of reliability." § 90.803(23)(a)(1), Fla....
...Although Seifert lodged objections to the hearsay statements, his objections went only to the nature of the evidence rather than its sufficiency in each of the instances he now challenges. In Stone, this court determined that a trial court's insufficient findings under section 90.803(23) will not equate with fundamental error....
...d the same Madonna video he played while baby-sitting the child victim. In sum, the ability now to dispute the sufficiency of the trial court's findings was not preserved and the trial court's shortcoming in according full obedience to section *1047 90.803(23) was harmless beyond a reasonable doubt....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2003 WL 1027760
...detective to identify Ashley's voice. The court then admitted the tape as substantive evidence, and it was played to the jury. On appeal, appellant argues the state failed to lay a proper predicate to admit the tape as a past recollection recorded. Section 90.803(5), Florida Statutes (2000), provides an exception to the hearsay rule for past recollection recorded: A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable...
...A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party. When the proper predicate is laid, a past recollection recorded is admitted as substantive evidence. See § 90.803(5)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1999 WL 128704
...Such statements are relevant to, and are admissible as, evidence of the victim's then existing state of mind regarding the question of ... consent." Pacifico v. State,
642 So.2d 1178, 1186 (Fla. 1st DCA 1994). The court in Pacifico reasoned that the victim's statements were admissible under the hearsay exception set forth in section
90.803(3), Florida Statutes, as evidence of the victim's then-existing mental or emotional condition....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1991 WL 95632
...If we were to assume that Brumfield's hearsay statement in someway implicated Mike in the transaction, it would nonetheless be inadmissible as to him, because the conditions precedent of the coconspirator exception to the hearsay rule had not been met. See Miller v. State,
545 So.2d 343 (Fla. 2d DCA 1989); §
90.803(18)(e), Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1996 WL 354412
...As we further noted in Johnson, however, "[u]nder the new code, the res gestae rule has been broken down into its various components." Id. Other courts have subsequently recognized this concept. See, e.g., Jano v. State,
510 So.2d 615, 616 (Fla. 4th DCA 1987) (exceptions under sections
90.803(1) (spontaneous statement) and
90.803(2) (excited utterance), Florida Statutes (1979), encompass evidence frequently considered under what was referred to as the res gestae exception prior to the adoption of the Florida Evidence Code), approved, State v....
...evidence but one of a group of exceptions subsumed under the old term of res gestae); Monarca v. State,
412 So.2d 443, 445 (Fla. 5th DCA 1982) (general philosophies of the res gestae exception to hearsay rule carried over into present evidence code, section
90.803, Florida Statutes (1979)); Alexander v. State,
627 So.2d 35, 43 (Fla. 1st DCA 1993) (testimony improperly excluded because admissible under the res gestae rule now codified in sections
90.803(1), (2), and (3), Florida Statutes (1991), which define the conditions for admissibility of (1) spontaneous statements, (2) excited utterances, and (3) then existing mental and emotional conditions of the declarant), review denied,
637 So.2d 236 (Fla.1994); Stiles v....
...s been incorporated into specific provisions of the Florida Evidence Code, it retains its vitality. We conclude, in that regard, as previously noted, that the specific provision justifying the admission of the appellee's statement to the neighbor is section 90.803(1), relating to the admissibility of a spontaneous statement, the governing principles of which were foreshadowed in Snowden. Under Snowden, and as now required by section 90.803(1), the appellee's statement to the neighbor clearly arose from the main event of the victim's suicide; described and explained the circumstances of that event; was made shortly after the suicide, while the circumstances surrounding th...
...Furthermore, the fact that the appellee made the statement in response to the neighbor's questions does not, on this record, diminish its spontaneity. See McGauley v. State,
638 So.2d 973 (Fla. 4th DCA 1994). We conclude, therefore, that the principles of Snowden, as now embodied in section
90.803(1), retain their precedential value and may appropriately be used as the basis for determining that the appellee's statement to the neighbor qualifies for admission as a spontaneous statement and, as such, constitutes "original evidence" for the purpose of proving the corpus delicti of assisting selfmurder. See Sunn v. Colonial Penn Ins. Co.,
556 So.2d 1156, 1157-1158 (Fla. 3d DCA 1990) (relying on principles of pre-Code case in determining whether statement admissible under sections
90.803(1) and (2)); Alexander,
627 So.2d at 43 (relying on pre-Code cases to justify admission of "res gestae statements" under sections
90.803(1), (2), and (3)); Stiles,
672 So.2d 850 (agreeing with analysis of Alexander); cf....
...uant to section
782.07, Florida Statutes (1993). There are no issues regarding that count involved in this appeal. [2] As we will explain later, under the current evidence code, this statement qualifies for admission as a spontaneous statement under section
90.803(1), Florida Statutes (1993), which defines such a statement as one "describing or explaining an event or condition made while the declarant was perceiving the event or condition, or shortly thereafter, except when such statement is mad...
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 1567
...Appellant does not dispute the hearsay character of the personnel documents on which the appeals referee declined to rely, but argues that they fall within the exception to the hearsay rule for records of regularly conducted business activity as defined in Section 90.803(6), Florida Statutes (1985): A memorandum, report, record, or data compilation in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, *...
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2006 WL 1707986
...Dorsey alleged there were no orders and that any testimony about these conversations would be offered to establish their truth, thus rendering the statements self-serving, inadmissible hearsay. Dr. Reddy responded that Dr. Boyer's statements were admissible as a hearsay exception under section 90.803(3) because the plans of Dr....
...as the evidence or an alternative theory supports the ruling. See, e.g., Muhammad v. State,
782 So.2d 343, 359 (Fla.2001) (considering the argument, not presented below, that the testimony at issue was nonhearsay rather than hearsay admissible under section
90.803(3)(a)2)....
...spoken, but, rather, to whether they were in fact spoken." Breedlove,
413 So.2d at 6 (citation omitted); Buchanan,
743 So.2d at 61. The court admitted the testimony regarding out-of-court statements by the radiologist, Dr. Stowe, and Dr. Boyer under section
90.803(3)(a)2, which provides that testimony is admissible if it is "[a] statement of the declarant's then-existing state of mind, ....
...s exception only if there is evidence demonstrating that the declarant acted in accord with the statement of intent. Ibar v. State, 31 Fla. L. Weekly S149, ___ So.2d ___,
2006 WL 560586 (Fla. Mar. 9, 2006). "[A] declarant's statement of intent under section
90.803(3) is only admissible to infer the future act of the declarant, not the future act of another person." Brooks v....
...Reddy asserts that he was the declarant of the statements made by the radiologist, Dr. Stowe, and Dr. Boyer. Dorsey correctly notes that the declarants, rather, were the radiologist, Dr. Stowe, and Dr. Boyer. Of the testimony challenged on appeal, the only statement arguably admissible under section 90.803(3) was Dr....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 24 Fla. L. Weekly Fed. D 1478
...Although appellant raised the Frye issue in his brief, he conceded that it was without merit at oral argument, and we need not address it. In order to introduce the blood alcohol report, the state called the hospital's medical records custodian who laid the necessary foundation under the business record hearsay exception, section 90.803(6)(a), Florida Statutes (1995)....
...1st DCA 1990), the first district held that a laboratory report from an independent laboratory showing cocaine in urine was admissible as a business record of the laboratory in a probation revocation proceeding. [3] Noting that the business records rule contained in the Federal Rules of Evidence, rule 803(6), is similar to section 90.803(6), Florida Statutes, the court relied on federal court decisions allowing laboratory reports identifying controlled substances to be admitted into evidence in criminal cases as business records....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1989 WL 65874
...one "Tony" who was at the homicide scene. The state of mind exception to the hearsay rule permits the admission of extrajudicial statements only if the declarant's state of mind is at issue or to prove or explain the declarant's subsequent conduct. § 90.803(3)(a), Florida Statutes (1987)....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2003 WL 21339448
...e them a statement. The hearsay exception for excited utterances applies to "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." § 90.803(2), Fla....
...The spontaneous statement exception and the excited utterance exception often overlap. However, as noted by Professor Ehrhardt: The two exceptions differ mainly in the amount of time that may lapse between the event and the statement *561 describing the event. Under Section 90.803(2) it is not necessary that there be contemporaneity between the event and the statement. As long as the excited state of mind is present when the statement is made, the statement is admissible if it meets the other requirements of Section 90.803(2)....
CopyCited 4 times | Published | Supreme Court of Florida | 2013 WL 3334954
of excitement caused by the event or condition. §
90.803, Fla. Stat. (2009). A trial court’s decision to
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 9869, 2010 WL 2670881
...of Investigation (FBI), of a summary dictated by an unidentified representative of the FBI, of an interview conducted either by that individual or another, is admissible in evidence under the public records exception to the hearsay rule codified in section 90.803(8) of the Florida Statutes (2008)....
...ter asserted."). [1] Arce concedes that unless the transcription meets an exception to the hearsay rule, it is inadmissible and summary judgment was appropriately entered. The only exception argued by Arce is the public records exception codified in section 90.803(8)....
...by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. § 90.803(8), Fla....
...o recipients of FOIA releases in lieu of imposing additional burdens on the government, or whether you have even explored that question. (Emphasis added). Moreover, while noting that the certification requirements sought by Arce pursuant to sections
90.803(8) and
90.902, Florida Statutes, would be unduly burdensome, the FBI further stated that Arce [Had] given [the FBI] no indication that the court is in fact requiring the burdensome certification that [Arce was] demanding or that [Arce has] att...
...Absent an actual order from the trial court, it is impossible to conclusively determine whether the FBI would have provided a certification to the trial court's satisfaction. *820 What is clear is that the FBI would not certify the records without a court order that was unreasonably withheld. Specifically, section 90.803, Florida Statutes, provides, in pertinent part: Hearsay exceptions; availability of declarant immaterial.The provision of s....
...in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence. (Emphasis added). Section
90.902(11), Florida Statutes, provides: (11) An original or a duplicate of evidence that would be admissible under s.
90.803(6), which is maintained in a foreign country or domestic location and is accompanied by a certification or declaration from the custodian of the records or another qualified person certifying or declaring that the record: (a) Was made at or...
...tivity; and (c) Was made as a regular practice in the course of the regularly conducted activity[.] (Emphasis added). If Arce were to comply with certification requirements, the FBI Records would likely be admissible under the exception set forth in section 90.803(6), because they are records of "acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge," in this case memorializing the statements made by Wackenhut's...
...nvestigation, which in light of its hiring procedures was in "the course of a regularly conducted business activity and. . . it was the regular practice of that business activity to make such memorandum, report, record, or data compilation. . ." See § 90.803(6), Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1992 WL 16636
...reports. The purpose for this practice was not disclosed in the testimony and other evidence received at trial. The trial court admitted the hospital records concerning the blood alcohol test including the cautionary language referred to above. LAW Section 90.803(6), Florida Statutes (1987), provides for the admission into evidence of: A ......
...denied,
577 So.2d 1328 (1991), we held: The report of laboratory blood test results performed in a hospital and contained in a patient's hospital record is generally admissible in evidence when the appropriate foundation is laid by a qualified person such as a hospital records custodian, pursuant to Section
90.803(6), Florida Statutes (1987)....
...evidence... . Andres challenges the admission of the test results solely because of the cautionary language on the record. The trial court concluded that the hospital report fit the hearsay exception of reports "in the ordinary course of business", Section 90.803(6), Florida Statutes (1987) and the cautionary language should go to weight, not admissibility....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2005 WL 405500
...*835 REQUIREMENTS FOR ADMISSION OF CHILD HEARSAY When determining whether to admit child hearsay statements regarding abuse (here, the mother's testimony), courts must find the time, content, and circumstances of the statement provide sufficient safeguards of reliability. See §
90.803(23)(a)(1), Fla. Stat. (2004); State v. Townsend,
635 So.2d 949, 954 (Fla.1994). Both statutory and case law provide suggested factors for courts to consider in making this determination. See §
90.803(23)(a)(1), Fla. Stat.; Townsend,
635 So.2d at 957-58. However, in all cases, courts must make specific findings of fact, on the record, regarding the reliability of the statement. See §
90.803(23)(c), Fla....
CopyCited 4 times | Published | Supreme Court of Florida | 33 Fla. L. Weekly Supp. 577, 2008 Fla. LEXIS 223, 2008 WL 5083515
Florida’s business-records exception appears in section
90.803(6)(a), Florida Statutes (2004).6 To secure
CopyCited 4 times | Published | Supreme Court of Florida
section 1, Laws of Florida, which amended section
90.803(24), Florida Statutes (2013) (Hearsay exceptions;
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2001 Fla. App. LEXIS 1356, 2001 WL 121091
...ith K.U.'s half-sister, N.M. We reverse, holding that the trial court erroneously admitted into evidence the hearsay statements of N.M. to her counselor, since there was no "other corroborative evidence of the abuse or offense" within the meaning of section 90.803(23), Florida Statutes (2000)....
...ing N.M. At the end of the evidence, the trial court granted the mother's motion for dismissal of the petition to adjudicate K.U. dependent as to the mother. As to the father, the court admitted N.M.'s hearsay statements to counselor Gallimore under section 90.803(23), making many of the extensive factual findings required by that section of the evidence code....
...Because it is dispositive of the case, we address only the father's contention that the half-sister N.M.'s statements to her therapist were erroneously admitted in evidence, because there was no "other corroborative evidence of the abuse or offense" within the meaning of section
90.803(23)(a)2.b., Florida Statutes (2000). Section
90.803(23) is an exception to the hearsay rule codified at section
90.802, Florida Statutes (2000). Section
90.803(23) provides for the admission of hearsay statements from children under the "physical, mental, emotional, or developmental age of 11 or less" where the statement describes: any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child ... §
90.803(23)(a), Fla. Stat. (2000). The section further provides that the source of information and the method and circumstances by which the statement is reported must not "indicate [] a lack of trustworthiness." §
90.803(23)(a), Fla. Stat. (2000). The hearsay exception requires the trial court to conduct a hearing to determine "that the time, content, and circumstances of the statement provide sufficient safeguards of reliability." §
90.803(23)(a)1., Fla....
...In addition to the indicia of unavailability provided for in section
90.804(1), a court may find a child to be unavailable to testify at trial if "the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm." §
90.803(23)(a)2.b., Fla. Stat. (2000). The "other corroborating evidence" requirement of section
90.803(23) "assures that a defendant will not be convicted solely on the basis of the hearsay testimony." Townsend,
635 So.2d at 957....
...The state offered the family's testimony to corroborate the 2 ½ year-old victim's claim that the defendant had taken her to a supply closet and touched her vagina. We held in Ghelichkhani that this testimonial evidence was not "other corroborative evidence of the abuse or offense" within the meaning of section 90.803(23): Here, the most that can be said is that the other evidence establishes that [the child victim] and the defendant were alone for a few moments in the supply room, i.e., that the defendant had the opportunity to commit the crime....
...ing] that a defendant will not be convicted solely on the basis of the hearsay testimony." Townsend,
635 So.2d at 957. Ghelichkhani,
765 So.2d at 192 (italics supplied). The "common thread" of the case law construing the corroboration requirement of section
90.803(23) is the corroborative evidence "tends to confirm the unlawful sexual act, i.e., the `abuse or offense.'" Id....
...Here, the only evidence being used to support N.M.'s hearsay statements is other hearsay statements made by the same child to the same therapist who testified as to the original declarations. The child declarant's hearsay statements cannot be "other" corroborating evidence within the meaning of section 90.803(23)(a)2.b....
...Because the trial court did not identify, and the record does not reveal, any evidence that could be used to corroborate N.M.'s statements that her father played a sexual game with her, the court erred in allowing N.M.'s statements to therapist Gallimore to be admitted under section 90.803(23)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 16 Educ. L. Rep. 678, 1984 Fla. App. LEXIS 12013
...tion
443.036(24)(b), Florida Statutes (1981), and thus entitled to unemployment benefits. As grounds for reversal, appellant contends that the decision is based upon an erroneous application of the public records exception to the hearsay *1063 rule, Section
90.803(8), Florida Statutes (1981), and that there is substantial competent evidence demonstrating misconduct on appellee's part in the performance of his duties....
...tion in the alleged "misconduct." It, however, did attempt to introduce through the testimony of the University's custodian of appellee's personnel file various documents relating to the firing under the public records exception to the hearsay rule, Section 90.803(8)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2006 WL 3486812
...In this case, as the previous act of child molestation shared numerous similarities with the charged offense, the trial judge did not abuse his discretion in admitting the evidence. Next, Moore argues the trial judge abused his discretion in allowing three different witnesses to testify to the child's hearsay statements. Section 90.803(23), Florida Statutes, governs the admission of such statements. Here, the child testified, the defendant received proper notice, and the trial judge specifically found that the statements were reliable. See § 90.803(23), Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1998 WL 733044
...We disagree with appellant's assertion that there was no evidence that he had a gun. The woman's statement to her companion at the time, introduced into evidence at the revocation hearing through her companion, was a classic example of an excited utterance, admissible as an exception to the hearsay rule under section 90.803(2), Florida Statutes (1997) ("A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.")....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1989 WL 148433
...Appellant objected to the testimony of the doctor and nurse, arguing that it *381 was inadmissible hearsay. The prosecution argued, and the trial court so found, that the testimony was admissible under the medical treatment or diagnosis exception to the hearsay rule, Section 90.803(4), Florida Statutes (1987)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2004 WL 2093236
...Appellant contested the phrase: "from arrested assailant," which was included in the medical record. The phrase is clearly hearsay. There are two grounds upon which the trial court may have based its admission of the contested phrase. The first is the business records exception. See § 90.803(6)(a), Fla. Stat. (2001). The second is the exception for statements relevant to medical diagnosis or treatment. See § 90.803(4), Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2001 WL 912945
...id not meet the prerequisites for admission of hearsay under the exception, i.e., that the statements relate to a startling event or condition and were made while the declarant was under the stress of excitement caused by the event or condition. See § 90.803(2), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2000 WL 354199
...f the [decedent's] truck and both vehicles flipped over." Appellee successfully argued at trial that, as part of a medical record, the statement by Faass qualified for the hearsay exception as a record of a regularly conducted business activity. See § 90.803(6), Fla....
...We find that the record supports a finding that decedent was "still experiencing the trauma of the events," see Henyard v. State,
689 So.2d 239, 251 (Fla.1996), and the trial court was within its discretion in admitting these statements under the excited utterance exception to the hearsay *844 rule as stated in section
90.803(2) Florida Statutes (1995)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2006 WL 1144187
...However, the warrants were not executed in time to secure the appearance of Mrs. Corona or A.C. before trial. The trial court agreed with the State that Mrs. Corona was not cooperating and that, consequently, A.C. was "unavailable" as a witness within the meaning of section 90.803(23), Florida Statutes....
...ORFINGER and MONACO, JJ., concur. NOTES [1] Deputy Avilis testified that "toto" meant vagina. [2] The confession was not taped. [3] Crawford's rejection of Ohio v. Roberts was significant in the context of child hearsay offered in sexual abuse cases under section 90.803(23) because the Florida Supreme Court relied on Ohio v. Roberts in finding that the introduction of child hearsay under section 90.803(23), Florida Statutes, met the requirements of the confrontation clause in cases in which the victim did not testify at trial....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2001 WL 417330
...lway prior to the fire claiming that such evidence constituted an impermissible comment on Mann's right to silence. The trial court denied the motion. [4] Similarly, any objections during re-direct examination were based solely on relevance. [5] See § 90.803(6), Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2004 WL 840253
...s necessary to establish guilt'", [whereas] "[c]hanges in the admission of evidence have been held to be procedural."
536 So.2d at 215 (quoting Miller v. Florida,
482 U.S. 423, 433,
107 S.Ct. 2446,
96 L.Ed.2d 351 (1987)). On this basis it found that section
90.803(23), involving a hearsay exception for child victim statements, was procedural because "`[t]he crime for which the present defendant was indicted, the punishment prescribed therefore, and the quantity or the degree of proof necessary t...
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 5444, 2015 WL 1650300
...retion in receiving the exhibits into
evidence." Specifically, State Farm contends that the payment history was properly
admitted into evidence. While we disagree with that contention—the servicer's
representative failed to meet the requirement of section 90.803(6), Florida Statutes
(2013), and WAMCO XXVIII, Ltd....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2004 WL 784503
...the introduction of Perera's statements regarding Perera's apology and uncle abuse. The grounds were not readily apparent to the trial court and, once enunciated, the hearsay grounds could be easily dismissed as an admission by a party opponent. See § 90.803(18), Fla....
...There was no witness testimony regarding the characteristics of a pedophile, and the State did not attempt to cast Perera into a pedophile profile. Perera's statement that his uncle abused him in Cuba thus did not qualify as pedophile profile testimony. Perera's statements instead constituted an admission of guilt. See § 90.803(18)....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 2942, 2009 WL 838285
...Rulings on the admissibility of evidence are reviewed for an abuse of discretion *104 as limited by the rules of evidence. Nardone v. State,
798 So.2d 870, 874 (Fla. 4th DCA 2001). DCF sought to admit the Maryland social service records as a business record pursuant to section
90.803(6), Florida Statutes. Because the documents were records of a public agency, we think the appropriate ground to seek their admission was section
90.803(8), Florida Statutes, which is the hearsay exception for public records and reports....
...n transmitted by a person with knowledge; (3) kept in the course of a regularly conducted business activity; and (4) that it was the regular practice of that business to make such a record. See Quinn v. State,
662 So.2d 947, 953 (Fla. 5th DCA 1995); §
90.803(6)(a), Fla....
...ess record because the records contained witness statements made to investigators, the substance of which was not within the personal knowledge of the agency employee. On the same rationale, the records could not be admitted as a public record under section 90.803(8)....
CopyCited 3 times | Published | District Court of Appeal of Florida
utterance exception to the hearsay rule. See §
90.803(2), Fla. Stat. (2013). “Whether the necessary
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2003 WL 22056036
...At the time of the trial, the victim was 8 years old, and he was available to testify. The prosecution intended to have the video tape played for the jury, in addition to presenting the child as a state's witness. The prosecution made appropriate motions to have the tape admitted as substantive evidence, pursuant to section 90.803(23)(a), Florida Statutes....
...In Green, a defendant was prosecuted and convicted of sexual abuse of a 14 year old victim, who was mentally retarded (IQ age 7). The child reported the abuse to her sister and again to the Child Protection Team, which videotaped her interview. Both her prior statement and the videotape were admitted at trial, pursuant to section 90.803(23)....
...The court concluded that: To convict Green based solely on the prior inconsistent statements of the victim would indeed create too great a risk of convicting an innocent accused.
667 So.2d at 760. The court cautioned, however, that this does not mean inconsistent statements admitted under section
90.803(23) can never be used as substantive evidence "when other proper corroborating evidence is admitted." But in that case, as well as this one, there was no corroborating evidence. However, in Department of Health and Rehabilitative Services v. M.B.,
701 So.2d 1155 (Fla.1997), a dependency case, the *580 court receded from Green and Moore. See also Conner v. State,
748 So.2d 950, 959 (Fla.2000). It said, pursuant to section
90.803(23), a child victim's out-of-court statements could be admitted as substantive evidence, even if inconsistent with the child's in-court testimony. The court quoted and agreed with Professor Erhardt's treatise [7] which suggests that if the out-of-court statement is admitted under a recognized hearsay exception or a statement pursuant to section
90.803(23), "which is surrounded by circumstantial guarantees of reliability," it is admissible as substantive evidence even though inconsistent with the in-trial testimony of the child....
...3d DCA 1997), concluded that prior inconsistent statements, which are recanted at trial, may serve as the sole basis to sustain a criminal conviction, if the out-of-court statements are admitted pursuant to a "firmly rooted" hearsay exception. In Williams, the statements were admitted at trial as "excited utterances" under section 90.803(2), which is an historically well-recognized hearsay exception....
...The most recent court to address this issue is the fourth district in Mikler v. State,
829 So.2d 932 (Fla. 4th DCA 2002). This was a sexual battery and molestation case involving a child victim. A videotape of the child's interview with detectives was admitted as substantive evidence pursuant to section
90.803(23)....
...At the trial, the child testified as to various other sex acts the defendant perpetrated against her, but she did not mention fellatio, and she was not cross-examined about it. The court indicated it agreed with Professor Erhardt's Treatise, that a statement admitted under section 90.803(23), standing alone, would be sufficient to convict a defendant of a crime, even if inconsistent with the in-court testimony....
...hysical examination of the child, and the defendant's statements to the police) making it "likely" fellatio was included. This case is more difficult than Mikler to sustain a sexual battery conviction, based on the child's video admitted pursuant to section 90.803(23)....
...distinction as to make them appear to dance on the head of a pin. More certainty is needed in resolving legal issues, especially in criminal cases. We resolve this case by concluding that the out-of-court statement of the child, admitted pursuant to section 90.803(23), is sufficient to sustain Beber's conviction of sexual battery, even though there is no true corroborating evidence other than the child's in court testimony that Beber perpetrated various other sexual crimes on him, and even thoug...
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 14533
custodian or other qualified witness [[Image here]] §
90.803(6)(a), Fla. Stat. In order for a document to be
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2005 WL 2373438
...going on can be a race neutral reason. The defendant next contends that the trial court erred by admitting into evidence the child hearsay statements of the victim, T.S. T.S. testified at the pretrial hearing regarding child hearsay statements, see § 90.803(23), Florida Statutes (2003), and also testified at trial....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1999 WL 743613
...negligent supervision stemming from an alleged sexual assault of a minor in appellees' care. Ruling on a motion in limine, the trial court determined that the victim's hearsay statements were not admissible under the child victim hearsay exception, section 90.803(23), Florida Statutes (1997). The trial court also found that the enactment of subsection 90.803(23) preempted all other hearsay exceptions for out-of-court statements by a child victim describing the offense or identifying the perpetrator. Because the trial court's ruling on the motion in limine left appellant with no evidence with which to prove her case, summary judgment was subsequently entered for the appellees. We affirm the trial court's determination that the requirements of section 90.803(23) were not met, but we find that the trial court erred in ruling that section 90.803(23) is the sole means by which hearsay statements by a child victim of abuse may be admissible in court....
...Appellant sued the Broward County School Board and the YMCA for negligent supervision. Prior to trial, C.B. underwent a psychological evaluation. Relying upon the mother's testimony that she did not want the child to testify, and a report from the psychologist, the trial court found C.B. unavailable to testify pursuant to section 90.803(23)(a)2.b....
...because the child's participation at trial would result in substantial likelihood of emotional or mental harm. Appellees made an ore tenus motion in limine to exclude from trial C.B.'s hearsay statements to her mother and the psychologist on the ground that the hearsay statements were not admissible pursuant to section 90.803(23) because C.B. was unavailable and there was no corroborating evidence of the incident. The trial court granted the motion in limine. Thereafter, the trial court granted summary judgment on behalf of appellees based upon the court's conclusion that section 90.803(23) preempted all other hearsay exceptions, and as a result, appellant had no evidence with which to prove her case. *1071 Child victim hearsay exception Section 90.803(23) was enacted as part of a legislative package dealing with children in judicial proceedings in which the 1985 session of the Florida legislature attempted to balance the need for reliable out-of-court statements of child abuse victims against the rights of the accused. See Ch. 85-53, Whereas Clause, at 140, Laws of Fla. Section 90.803(23) is an exception to the hearsay rule which permits the introduction of hearsay statements of a child victim of abuse when the trial court conducts a preliminary hearing outside of the presence of the jury and determines that the statements are reliable and (1) either the child testifies, or (2) the child is unavailable as a witness and there is other corroborative evidence of the abuse. Initially, appellant argues that C.B.'s hearsay statements were admissible under section 90.803(23) because C.B....
...s the procedure to be followed when a child victim's videotaped testimony is to be utilized at trial in lieu of live testimony. A videotaped statement of a child taken pursuant to section
92.53 is admissible in court and satisfies the requirement in section
90.803(23) that the child testify in order to admit out-of-court statements....
...Stat.; Feller v. State,
637 So.2d 911, 914 (Fla.1994). Because C.B.'s deposition was not videotaped in compliance with section
92.53, we agree that these out-of-court statements are not admissible as the equivalent of testimony in open court pursuant to section
90.803(23)....
...reserved by videotaping. See Glendening,
536 So.2d at 212; State v. Asfour,
555 So.2d 1280 (Fla. 4th DCA 1990)(finding that videotaped initial police interview with alleged child victim of sexual abuse was not testimony pursuant to sections
92.53 or
90.803(23)). Alternatively, appellant maintains that C.B.'s hearsay statements were admissible under section
90.803(23) because C.B....
...was agitated and was very upset following the alleged incident. Based on the record, we cannot say that the trial court abused its discretion in determining that the corroborating evidence in the instant case was insufficient to comply with the requirements of section 90.803(23)....
...B'Nai Torah Congregation of Boca Raton, Inc.,
639 So.2d 1022 (Fla. 4th DCA 1994), for its argument that the corroboration in the instant case was sufficient. We find Zmijewski distinguishable. There, the corroboration of the sexual abuse, which was found sufficient under section
90.803(23), included not only the professional opinions of two doctors that the child was exhibiting signs of having been sexually abused, but also the affidavit of the mother, stating "that she had picked up the child at school in a dazed co...
...In addition to the physical corroborative evidence presented by the mother, the doctors' affidavits suggested that there was possible anal penetration. See id. Other hearsay exceptions potentially applicable in child abuse cases Appellant also argues that the trial court erred in concluding that section 90.803(23) was the exclusive method by which hearsay statements by a child victim may be admitted into evidence....
...say rule, [1] or whether her out-of-court statements to the psychologist were admissible under the medical treatment and diagnosis exception to the hearsay rule. [2] We agree. Appellees rely on State v. Jones,
625 So.2d 821 (Fla.1993), to argue that section
90.803(23), is the only method by which hearsay statements by a child victim may be admitted into evidence....
...to medical personnel can be reasonably pertinent to medical diagnosis or treatment when the perpetrator is a member of the victim's family. In Jones, the Florida Supreme Court rejected this holding in Flanagan. Relying on the legislative history of section 90.803(23), which indicated that the Florida legislature rejected proposals to expand the medical diagnosis or excited utterance exceptions in ways that would accommodate statements by victims of abuse in favor of an exception specifically applicable to child victims, the court determined that section 90.803(23) was the appropriate exception to admit a child victim's hearsay statements regarding the identity of the perpetrator....
...See Jones,
625 So.2d at 825. A close reading of Jones indicates that the case stands only for the proposition that the identity of the perpetrator is not admissible under the medical diagnosis and treatment exception to the hearsay rule. Jones does not suggest that section
90.803(23) is the only hearsay exception *1073 which applies to out-of-court statements of a child victim. [3] In conclusion, we find that the trial court erred in finding that section
90.803(23) preempts all other hearsay exceptions when the out-of-court statements are made by a child victim of abuse....
...the medical diagnosis and treatment exception and whether C.B.'s out-of-court statements to her mother are admissible at trial as excited utterances. REVERSED and REMANDED. WARNER, C.J., and KREEGER, JUDITH L., Associate Judge, concur. NOTES [1] See § 90.803(4), Fla. Stat. [2] See § 90.803(2), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2000 WL 1345946
...Millien contends that the excluded testimony from witnesses that they had been asked to falsely accuse Millien was admissible under the exception to the hearsay rule for out-of-court statements of a declarant's then-existing state of mind to prove subsequent conduct. See § 90.803(3), Flat....
...Accordingly, we vacate the sentence imposed and remand to the trial court for resentencing in accordance with this opinion. We have considered the other issues raised on appeal, and we find no error. AFFIRMED in part, REVERSED in part, and REMANDED. WARNER, C.J., and GUNTHER, J., concur. NOTES [1] As relevant here, section 90.803(3) allows an exception to the hearsay rule for: (a) A statement of the declarant's then-existing state of mind, ..., including a statement of intent, plan, motive, [or] design,..., when such evidence is offered to: (1) Prove the declar...
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1992 WL 227763
...Broedel testified that no one else was in the aisle when she arrived at the scene and that a cashier did not come to the scene. The Chaneys seek review of the trial court's rulings which prohibited each of them from testifying about statements that they allege a Winn Dixie employee made to them. Section 90.803(18)(d), Florida Statutes (1991) authorizes an exception to the hearsay rule for "[a] statement that is offered against a party and is ......
...e to act on the part of Winn Dixie that would preclude a directed verdict in favor of Winn Dixie. The proffered statement of the alleged "cashier" was clearly excludable as hearsay unless admissible under the exception to hearsay rule established in section 90.803(18)(d), Florida Statutes (1991)....
...The proponent of evidence as an exception to the hearsay rule of exclusion has the burden to demonstrate that the evidence fits the requirements of the exception. Oki America, Inc. v. Microtech International, Inc.,
872 F.2d 312 (9th Cir.1989). Appellants, in my opinion, have failed to adequately meet this burden. Section
90.803(18)(d) has two requirements for admission of hearsay statements of an agent of a party that are relevant to this case....
...requirement that the alleged "cashier's" statements concerned matters within the scope of her employment. Statements of a clearly identified employee or agent of a party need not always be based on personal knowledge in order to be admissible under section 90.803(18)(d)....
...made to her by an unidentified nurse which indicated that the posey was still on Mrs. Keyes at the time she was found on the floor. While statements made by an employee of a party in the course of their employment are normally admissible pursuant to section 90.803(18)(d), Florida Statutes (1989), the general rule does not have to be applied in cases where there is an insufficient basis to establish whether the statement is made about matters within the personal knowledge of the declarant, or where the statement does not meet other tests of admissibility....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2006 WL 2612895
...Hearsay is inadmissible under section
90.802, Florida Statutes (2005), unless it falls within an exception to the hearsay rule. The trial judge ruled that the audiotape was admissible under the spontaneous statement exception [1] to the hearsay rule, contained at section
90.803(1), Florida Statutes (2005)....
...Reversed and Remanded. WARNER and KLEIN, JJ., concur. NOTES [1] Because the issue was not briefed on appeal, we do not consider whether Officer Young's audiotaped play-by-play fell under the spontaneous statement exception to the hearsay rule, contained at section 90.803(1), Florida Statutes (2005)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2007 WL 2609441
...either is), nevertheless the defense did not renew its request for its admission. The trial court must evaluate the evidence and surrounding circumstances to determine whether a statement may qualify as an excited utterance or spontaneous statement. Section 90.803(1) provides an exception to the hearsay rule for a "spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness." Similarly, section 90.803(2) allows for the admission of "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Most questions or inquiries are not hearsay....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2002 WL 31255467
...She told the jury that she had been selling mangos door-to-door when appellant grabbed her into his house, took her into his bedroom, and ordered her to take off her clothes. He sucked on the victim's breasts and put his penis into her vagina, anus, and mouth. After the trial court ruled that it was admissible under section 90.803(23), Florida Statutes (2001), the state played an audio tape of a statement the victim gave to the investigating detective....
...Mikler argues that "unsworn, uncorroborated child-hearsay statements that are inconsistent with the victim's trial testimony are insufficient, as a matter of law, to sustain a conviction." The supreme court held in Perez v. State,
536 So.2d 206, 209 (Fla.1988), that "section
90.803(23) comports with the requirements of the confrontation clauses of both the federal constitution and the Florida Constitution." In State v. Townsend,
635 So.2d 949, 956-57 (Fla.1994), the supreme court again ruled that the statute was constitutional, taking into consideration Idaho v. Wright,
497 U.S. 805,
110 S.Ct. 3139,
111 L.Ed.2d 638 (1990). Townsend was a case involving section
90.803(23)(a)2.b., where the child declarant is "unavailable" as a witness and does not testify at trial....
...From reading Townsend, it is unclear whether the supreme court intended this two-step analysis to apply to the situation where the child declarant testifies at trial. However, a close reading of Townsend convinces us that the supreme court did not intend to rewrite the statute. Section 90.803(23)(a)2.b., Florida Statutes (2001), requires "other corroborative evidence of the abuse or offense" only in the situation where the child is "unavailable as a witness." Townsend was a case where the state and defense stipulated that the child was incompetent to testify at trial....
...discovery *935 of truth'." Conner v. State,
748 So.2d 950, 955 (Fla.2000) (quoting California v. Green,
399 U.S. 149, 158,
90 S.Ct. 1930,
26 L.Ed.2d 489 (1970) (quoting 5 J. WIGMORE, EVIDENCE § 1367 (3d ed.1940))). In this respect, the mechanism of section
90.803(23)(a)2.a....
...ild declarant also testifies at trial, or if the child declarant is determined to be unavailable and there is " other corroborative evidence of the abuse or offense. " (Emphasis added, italics in original). In addition to those factors listed in the section 90.803(23)(a)1., the supreme court in Townsend established a nonexclusive list for the trial court to consider in evaluating the reliability of a child's out of court statement under the statute: a consideration of the statement's spontaneity...
...d was able to "clearly articulate the incident which involved sexual abuse against her," the "child's answers were responsive and expansive," and the "statement was made on the same day of the incident." The trial court's specific findings satisfied section
90.803(23)(c); the victim's testimony at trial met the requirement of section
90.803(23)(a) 2.a. The statement was therefore admissible under section
90.803(23). [1] See R.U.,
777 So.2d at 1158-59. If a statement is admissible under section
90.803(23), it may be "considered as substantive evidence by the trier of fact." Dep't of Health & Rehab. Services v. M.B.,
701 So.2d 1155, 1160 (Fla. 1997). Consideration of a statement admitted under section
90.803(23) "as substantive evidence by the trier of fact does not require that the child's testimony at trial be consistent with the out-of-court statements." Id.; see Williams v....
...State,
714 So.2d 462, 466 n. 5 (Fla. 3d DCA 1997) (expressing the view that a "child victim hearsay statement is sufficient, on its own, to sustain a conviction if the statement is determined to carry the `sufficient safeguards of reliability' ... required by section
90.803(23)"). In M.B., the supreme court agreed with Professor Ehrhardt's conclusion that a statement admitted under *936 a section
90.803 hearsay exception is "surrounded by circumstantial guarantees of reliability" to allow use of the statements as substantive evidence....
...the victim's trial testimony, standing alone, was insufficient to sustain a criminal conviction." M.B.,
701 So.2d at 1162. The supreme court referenced the language in Green that the opinion did `"not mean that inconsistent statements admitted under section
90.803(23) can never be used as substantive evidence when other proper corroborating evidence is admitted." ` Id....
...This case is a criminal proceeding, so we must still confront Green and Moore, as explained in M.B., to decide this case. Moore is distinguishable and does not control. That case involved only the use of prior inconsistent statements as substantive evidence. Unlike section
90.803 exceptions to the hearsay rule, which are traditionally received as substantive evidence, prior inconsistent statements are not "surrounded by circumstantial guarantees of reliability." M.B.,
701 So.2d at 1161 (quoting EHRHARDT, FLORIDA EVIDENCE § 803.23, at 702)....
...Mikler's other main point on appeal concerns comments made by the prosecutor during closing argument. Any preserved errors were harmless; none were fundamental. AFFIRMED. WARNER and HAZOURI, JJ., concur. NOTES [1] Even assuming "other corroborative evidence" is required in this case to admit a section 90.803(23)(a)2.a....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1990 WL 164985
...was nervous and scared that she might be in danger, and that her daughter should call the police if she was not back by midnight. The Supreme Court held that such testimony regarding the mental state of the victim was admissible under section *1334 90.803(3)(a), because in order to establish the kidnapping on the felony-murder charge the state had to prove that the defendant had forcibly abducted the victim against her will....
...victim's state of mind in connection with the kidnapping charge. The rule permits admission of hearsay statements which: Prove the declarant's state of mind ... at that time or at any other time when such state is an issue in the action. Fla. Stat. 90.803(3)(a)1....
...Florida Statute
90.403 provides: Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. In an authoritative discussion of the balancing process between the admission of Section
90.803(3)(a) state of mind hearsay with Section
90.403, the court in United States v....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2008 WL 4629572
...hout qualifying under an exception of its own. [2] See §
90.805, Fla. Stat. (2007) ("Hearsay within hearsay is not excluded under s.
90.802, provided each part of the combined statements conforms with an exception to the hearsay rule as provided in s.
90.803 or s....
...as within the personal knowledge of Ms. Zepp and that the email did not contain hearsay within hearsay. [3] Over objection, the email was admitted in its entirety as fitting within the business record exception [4] to the rule excluding hearsay. See § 90.803(6), Fla....
...VAN NORTWICK and HAWKES, JJ., concur. NOTES [1] That "she wants him out" was presumably offered to prove Ms. Baldwin's state of mind during the conversation that led to the email, and at least arguably fell within the "state of mind" exception to the rule excluding hearsay. See § 90.803(3)(a)1., Fla....
...at that time or at any other time when such state is an issue in the action."). But see C. Ehrhardt, Florida Evidence § 803.3a at 857-58 (2008 ed.) ("In a murder case, hearsay statements made by the victim showing that the victim is afraid of the defendant are not admissible under section 90.803(3) since the state of mind of the victim is not a material issue."); Suarez v....
...e the defendant's state of mind. Each of these cases concerned a statement by a victim to a third person expressing fear of the defendant before a murder, which we ruled inadmissible under the state of mind exception to the hearsay rule contained in section 90.803(3)." (internal citations omitted)); Selver v....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1994 WL 576096
...Prior to the trial beginning, Belcher moved to exclude hearsay statements made by the victim to other witnesses and requested that the state be required to proffer any possible hearsay statements outside the jury's presence because these statements would not qualify as early outcry, pursuant to section 90.803(1), (2) or (3), Florida Statutes (1991)....
...iven as to the primary offenses also. POINTS ON APPEAL Belcher raises three issues for appellate review. The first issue concerns the admissibility of hearsay evidence without a proffer being offered outside the presence of the jury in derogation of section 90.803(23), Florida Statutes (1991)....
...THE VICTIM'S PRIOR CONSISTENT STATEMENTS The Florida supreme court in Pardo v. State,
596 So.2d 665 (Fla. 1992) and State v. Kopko,
596 So.2d 669 (Fla. 1992) held that a child's hearsay statements may be admissible when the statements qualify under the statutory exception of section
90.803(23), Florida Statutes (1991)....
...lative evidence. Thus, the state may present hearsay testimony as long as the balancing test in Pardo and Kopko has been met. In this case, it is conceded that the trial court did not conduct a hearing outside the presence of the jury as required by section 90.803(23), Florida Statutes (1991)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1981 Fla. App. LEXIS 21293
...adings. Accordingly, Fortune's impeachment of her testimony was proper under Rule 1.450(a), and Lieutenant Moore's testimony regarding Cathy's out-of-court *823 statements came within the "admissions" exception to the hearsay rule. Florida Statutes, Section 90.803(18)(a); Hunt v....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2005 WL 3076600
...He further alleged that the tape was inadmissible hearsay, violating his right to confrontation, and that his daughters initiated contact. The FPC responded that Sylvis's statements were admissible as former testimony, statements against interest, and an admission under section 90.803(18), Florida Statutes (2003)....
...rontation because he was the declarant. The circuit court denied Sylvis's petition for writ of habeas corpus on 22 October 2004. It ruled that Sylvis's statements were admissible as former testimony, statements against interest, and admissions under section 90.803(18), and that such admissions constituted "indirect evidence sufficient to support revocation of supervised release." Sylvis's motion to alter or amend the denial was denied 16 December 2004....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1999 WL 1036512
...ntrol in another case. Finding no reversible error, we affirm all the issues raised. We write to address Reyner's contention that the trial court erred in ruling that Reyner's statement to a police officer was sufficient corroborative evidence under section 90.803(23)(a)2 b., Florida Statutes (1997), to allow into evidence the child's hearsay statement to her father....
...d "wet stuff" came out of his penis. Reyner was subsequently convicted of the lesser included offense of an attempted lewd and lascivious act upon a child. As this court recently stated in Delacruz v. State,
734 So.2d 1116, 1119 (Fla. 1st DCA 1999): Section
90.803(23) of the Florida Evidence Code addresses the circumstances in which otherwise inadmissible out-of-court statements made by an alleged child victim may be admitted in evidence at trial....
...owing issue: [W]hether the statement made by [Delacruz] when he was arrested, admitting that he could have accidentally touched the child's vagina "a lot of times" while playing with her, may constitute "other corroborative evidence" for purposes of section 90.803(23)(a)2b. Id. at 1122. Delacruz held that such a statement "may qualify as `other corroborative evidence of the abuse or offense' for purposes of section 90.803(23)(a)2b," but because the case was being remanded for a new trial, we expressly left open the question whether the trial court could find "sufficient corroboration in [Delacruz's] statement, alone, to satisfy the requirement of section 90.803(23)(a)2b." Id....
...The question left unanswered in Delacruz is squarely presented in the instant case. We are asked to decide whether a statement made by Reyner to a police officer after his arrest, by itself, can constitute sufficient corroborative evidence of the act alleged to satisfy section 90.803(23)(a)2 b, so that the out-of-court statement of the child victim could be admitted in evidence at trial....
...e had the opportunity to be exposed to his penis. Based upon our standard of review, we cannot say that the trial court abused its discretion in ruling that the appellant's statement was sufficient, alone, to satisfy the corroboration requirement of section 90.803(23)(a)2 b, and admitting into evidence the child's hearsay statement....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2007 WL 3354358
...se. Appellant argues that out-of-court statements made between Hawse and Hernandez occurring before December 23, 2003, were inadmissible as evidence that Appellant was a participant in a conspiracy to traffic in cocaine. Pursuant to Florida Statutes section 90.803(18)(e), the following hearsay is admissible: A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1991 WL 231854
...tent as evidence of passenger negligence. First, it is unclear from the notation whether it was the truck that was going 55 mph, or the passenger's vehicle. Second, and even if it were clear that the speed referred to the auto rather than the truck, section 90.803(4), Florida Statutes (1989), makes such information in medical records admissible only "insofar as reasonably pertinent to diagnosis or treatment." Visconti v....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...es. Here, unlike Morris, the record on appeal shows a verified affidavit from GeneScreen (the DNA testing facility) which states that the results and medically accepted procedures were followed "in accordance with the requirements of Florida Statute 90.803(6), governing the admission of business records into evidence, the said paternity evaluation test results were compiled in the course of regularly conducted activity at or near the time of the test by an individual employed by GeneScreen with...
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2007 WL 1264090
...r pointed, (2) who gave the description of the car, and (3) Laviolet positively identifying Veltre in a photo line-up. [1] First, as to testimony regarding the neighbor pointing, the court properly admitted the statement as a hearsay exception under section 90.803(1), Florida Statutes....
...The trial court found that testimony regarding the neighbor's pointing qualified as a spontaneous statement and offered to give a limiting instruction. Defense counsel declined to have an instruction, and the court overruled the defense objection. Section 90.803 recognizes a spontaneous statement as a hearsay exception and defines such statement as "[a] spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness." § 90.803(1), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2008 WL 2038030
...On appeal, this court remanded for an evidentiary hearing on one claim, alleging ineffective assistance of counsel by failing to object to the introduction of child hearsay where the trial court did not make complete findings of reliability required by section 90.803(23)(a)(c), Florida Statutes....
...th respect to which the trial court found that: the time content or circumstances of the statement provide sufficient safeguards of reliability considering all the factors including the age, maturity level, nature of abuse, all that's required under 90.803, especially in light of the fact the child already testified, so I can evaluate this in what previously went on....
...Had counsel objected, this Court would have made further factual findings, and under the state of the law at the time, Mrs. Garcia's testimony was admissible, even though this Court heard the victim testify prior to Mrs. Garcia's proffered testimony. Section 90.803(23)(a) provides for a hearsay exception for a statement of a child victim who is eleven years old or younger....
...In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of *1278 the assertion, the reliability of the child victim, and any other factor deemed appropriate. § 90.803(23)(a)(1), Fla. Stat. The statute further mandates that "[t]he court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection." § 90.803(23)(c), Fla. Stat. § 90.803(23) requires the trial court to set forth the specific reasons the court relied upon....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1993 WL 154275
...*348 LEHAN, Judge. Defendant was convicted of two counts of capital sexual battery after a jury found that he had digitally penetrated the child victim's vagina and anus. His sole contention on appeal is that the trial court erred in admitting, under section 90.803(23), Florida Statutes (1991), the prior hearsay statements of the victim, an eight-year-old girl, to two individuals, the victim's school principal, Rose Chillura, and a detective, Sherry Bouknecht. He does not challenge the admission of the victim's hearsay statements to a third individual, an HRS investigator. We affirm. At issue is whether the trial court adequately followed the procedural safeguards of section 90.803(23) in admitting the victim's hearsay statements to the principal and the detective....
...ial testimony, that defendant had digitally penetrated her vagina and anus. As to the Chillura hearsay testimony, we do not conclude that the trial court erred. It is clear enough that boilerplate findings that merely track the statutory language of section 90.803(23)(a)1 are insufficient; the court must make findings that are case-specific....
...ies in the proffered hearsay. However, this time defense counsel did object to the trial court's findings immediately after they were made: "Once again, Your Honor, I consider the record protected as far as any objections to evidence submitted under section 90.803." The court then acknowledged: "Yes, your record is protected." While defense counsel's objection to Bouknecht's proffered testimony was overly general, at least it was timely made, and the court's subsequent acknowledgment, we conclude, rendered it sufficient....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1992 WL 98548
...iscussing several issues. Only two of the issues identified in the supplemental brief merit discussion. First, under point five appellant's brief contends that since the child victim testified at trial, the court erred in also admitting, pursuant to section 90.803(23), Florida Statutes (1989), the child victim's hearsay statements to her mother, the Child Protection Team counselor, [2] the CPT doctor, [3] and the investigating detective because such evidence was cumulative and unduly prejudicial to the defendant's right to a fair trial....
...In this case direct evidence of the alleged touching came only from the child victim's testimony and the defendant's denial. The other witnesses only reiterated the child victim's hearsay statements to them. It is now firmly established that merely because such hearsay statements may be properly admitted in evidence under section
90.803(23), the trial court is not relieved of its obligation to determine whether such evidence is nevertheless inadmissible under section
90.403 (because "its probative value is substantially outweighed by the danger of unfair prejudice, co...
..., or needless presentation of cumulative evidence"). In Pardo v. State,
596 So.2d 665 (Fla. 1992), the supreme court clarified the correct approach to passing on the admissibility of such hearsay statements found to qualify for admission pursuant to section
90.803(23): However, we also agree with the court below that this is not the end of the inquiry....
...und and experience in dealing with sexually abused children that [what this victim had described] was consistent with the child who had been sexually abused." [3] The state offered the doctor's testimony of the child's hearsay statements pursuant to section 90.803(23), not as statements for purposes of medical diagnosis or treatment pursuant to section 90.803(4), no doubt because there was no medical diagnosis of injury or medical treatment involved....
...y so it was very consistent." Despite apparent questions as to the relevancy of this testimony, as well as the cumulative and prejudicial nature of this testimony, defense counsel made no objection on grounds other than lack of trustworthiness under section 90.803(23).
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2001 WL 219299
...State,
438 So.2d 374, 377 (Fla. 1983). Detective Ford, however, testified that he perceived Everette to be in fear during the pretrial photo line-up. The detective's own observation of Everette's fear falls within the hearsay exception contained in section
90.803(3)(a)(2), Florida Statutes (1995), [2] and explains Everette's then mental or emotional condition and his subsequent recantation at trial. See Lopez v. State,
716 So.2d 301 (Fla. 3d DCA 1998) (sergeant's testimony as to witness' fear admissible under §
90.803(3), to explain witness' subsequent conduct at trial recanting a prior unequivocal identification of defendant)....
...Because the statements of identification were independently admissible as substantive evidence, it follows that the defendant would not have been entitled to a limiting instruction, see majority opinion at 4, even if one had been requested. NOTES [1] Larry Brown, the third victim, did not testify at trial. [2] Section 90.803(3) provides as follows: (3) Then existing mental, emotional, or physical condition....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1999 WL 110758
...Furthermore, unlike testimony in open court or even deposition testimony, the interviews are conducted on an ex parte basis without the right of cross-examination. Thus, we hold that videotaped out-of-court interviews with child victims introduced into evidence under section 90.803(23) shall not be allowed into the *735 jury room during deliberations....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 4180, 2010 WL 1347319
...e to examine juror who cried during the victim's testimony did not constitute reversible error). Under issue II, the appellant argues that while the testimony of several witnesses regarding hearsay statements made by the victim were admissible under section
90.803(23), Florida Statutes, the statements were nevertheless inadmissible under section
90.403, Florida Statutes. [2] After a thorough review of the record, we find that the appellant's argument under issue II was not properly preserved for appellate review. See Tillman v. State,
471 So.2d 32, 35 (Fla.1985). Initially, we note that section
90.803(23), Florida Statutes, allows for the introduction of testimony concerning hearsay statements made by a child-victim under the age of 11 regarding the abuse, if the trial court determines the statements are sufficiently reliable. §
90.803(23), Fla. Stat. The supreme court has noted that the language of section
90.803(23) provides that "a child victim's hearsay statement is not excludable per se as hearsay, or as a prior consistent statement, even though the child testifies fully at trial." Pardo v....
...that the witness' testimony regarding the victim's statements would be prior consistent statements and would, therefore, improperly bolster the victim's trial testimony. The trial court properly ruled that the specific hearsay exception contained in section 90.803(23), Florida Statutes, trumped the bolstering and prior consistent statement arguments advanced by the defense counsel....
CopyCited 3 times | Published | Florida 5th District Court of Appeal
...tatutes (1989). II. Hearsay testimony of statements made by the child were admitted into evidence without a hearing to determine "that the time, content, and circumstances of the statement provide sufficient safeguards of reliability" as required by section 90.803(23), Florida Statutes (1989)....
...Testimony of the child's out-of-court statements by two psychologists, a pediatrician, [1] the guardian ad litem, and two H.R.S. caseworkers was admitted over the objection that the court had not held a hearing to determine the trustworthiness of the hearsay. The hearing is required by section 90.803(23), Florida Statutes (1989)....
...was telling the truth). We reverse the order of dependency and remand for a new hearing. REVERSED and REMANDED. GRIFFIN and DIAMANTIS, JJ., concur. NOTES [1] After the objection, the court apparently admitted the pediatrician's testimony pursuant to section 90.803(4), Florida Statutes, and the mother did not argue that this exception to the hearsay rule did not apply....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1995 WL 111507
...abuse. Although he presents a number of issues, we find that only two merit discussion whether the trial court erred by admitting out-of-court statements attributed to the alleged child victim without making the findings required by section *438 90.803(23) of the Florida Evidence Code; and whether the trial court erred by admitting out-of-court statements attributed to a non-victim child witness....
...The statements were almost perfectly consistent with Stevie's trial testimony. The state concedes, correctly, that the findings made by the trial court in support of its decision to admit the alleged out-of-court statements of Annie were insufficient to meet the requirements of section 90.803(23) of the Florida Evidence Code, as those requirements have since been construed in Hopkins v....
..."Annie's" hearsay statements were made to a law enforcement officer and to a member of the Child Protection Team. The error involved in their admission into evidence was that the trial court failed to make specific findings concerning the reliability of such statements as required by section 90.803(23), Florida Statutes....
...nie" that day and concluded that her injuries were the result of child abuse. The hearsay statement made by the non-victim child, appellant's 8-year old son, "Stevie", to an HRS investigator, was erroneously admitted because the hearsay exception in section 90.803(23) is limited to child victims....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1989 WL 23507
...The review function we have undertaken has not in any degree involved reweighing of the evidence. Rather, contrary to Whatley's view, we have been asked by Southern Bakeries simply to determine if the referee and the Commission have failed properly to apply section 90.803(6), Florida Statutes (1987). This court, on a prior occasion, determined that section 90.803(6) is applicable to proceedings conducted under chapter 443, Florida Statutes (1987), and that records maintained in the regular course of business are admissible as an exception to the hearsay rule....
...Brenda Todd who also verified the integrity of the specimen container seal. We find in the appeals referee's statement that the record is "devoid of proper witnesses to authenticate the chain of custody" a grand misperception of the manner in which section 90.803(6) is intended to be applied. It seems that the referee harbored the notion that each person involved in the taking and analyzing of the specimen was an essential witness to the process from beginning to end. Section 90.803(6) does not require that quantum of proof....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2007 WL 1753557
...5th DCA 1997). Appellants released some of the records in their original claim to U.S. Life. Dr. Poet's records were produced in response to a court-ordered authorization form. Declarations of authenticity filed by U.S. Life complied with the requirements of section 90.803(6)(a), Florida Statutes (2006), which provides that the foundation for the admission of business records may be shown "by a certification or declaration that complies with paragraph (c) and s....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1996 WL 310164
...Having reviewed the record and the applicable statutory and decisional law, we agree that a rehearing is warranted. We conclude that the trial court abused its discretion in finding that the defense had failed to lay a proper predicate for admission of the test results pursuant to section 90.803(6), Florida Statutes, and Love v....
...After the close of the state's case-in-chief, defense counsel attempted to lay a predicate for admission of medical evidence under either the "purpose of medical diagnosis or treatment" or "business records" exception to the hearsay rule. Those respective statutes provide in pertinent part: 90.803 Hearsay exceptions; availability of declarant immaterial.___ The provision of s....
...Apparently, the trial judge was concerned because the doctor had not relied on the blood alcohol result, and because a police officer had ordered one test and an undetermined person had ordered the other test. The Fourth District Court, on rehearing en banc, held that, pursuant to section 90.803(6), Florida Statutes, in those instances where the challenging party makes a sufficient showing that relates to the accuracy, reliability, or trustworthiness of medical record entries, the trial court may require the proponent of the e...
...iness record hearsay exception," and it quashed the decision below.
634 So.2d at 160. Love sets out the following procedure to be followed. If a laboratory or hospital records custodian or other qualified witness establishes a proper predicate under section
90.803(6), Florida Statutes, "the burden is on the party opposing the introduction to prove the untrustworthiness of the records....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2004 WL 1496855
...The court observed that BellSouth was not a party to the litigation, and therefore had "absolutely no reason" to provide false or incorrect information. We affirm. The witness who testified at the hearing was a "qualified witness" to testify about the records. § 90.803(6)(a), Fla....
...ved records in response to the subpoena. AFFIRMED. STONE, GROSS and HAZOURI, JJ., concur. NOTES [1] Rule 803(6) of the Federal Rules of Evidence, the federal business records exception rule, is substantially similar to Florida's version, pursuant to section 90.803(6)(a).
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1994 WL 390758
...untariness. The appellant next contends that there was no basis for receiving Dr. Snyderman's testimony which contained hearsay statements of the child. We find appellant's argument on this point to be without merit for the following reasons. First, section 90.803(4), Florida Statutes (1991), includes as a hearsay exception: Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, ......
...iagnosis or treatment, however, statements of fault are not admissible. State v. Jones,
625 So.2d 821 (Fla. 1993). In the instant case, the child's statements to Dr. Snyderman regarding how she had been sexually assaulted were admissible pursuant to section
90.803(4) since those statements were reasonably pertinent to the physician's diagnosis or treatment....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 10569, 2010 WL 2882466
...The rule of completeness, however, is not absolute and a trial court may exercise its discretion to exclude irrelevant portions of a recorded statement. Layman v. State,
728 So.2d 814, 816 (Fla. 5th DCA 1999). "Self-serving statements are not admissible under section
90.803(18)," see Lott v....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2000 WL 991664
...se or offense and reverse. Admissibility of Child Victim Hearsay Florida's Evidence Code permits the hearsay statements of a child who is the victim of sexual abuse to be introduced into evidence provided that certain criteria are met. Specifically, section 90.803(23), Florida Statutes (Supp.1998), provides that such statements are admissible when (1) the statements are made by a child "with a physical, mental, emotional, or developmental age of 11 or less"; (2) the statements "describ[e] ......
...Ghelichkhani put on no evidence to the contrary and the judge found K.L. unavailable as a witness at trial. As a result of this finding, in addition to proving that the statements were reliable, the State was required to establish that there was "other corroborative evidence of the abuse or offense." § 90.803(23)(a)2.b....
...At the conclusion of the hearing, the trial judge found (1) that K.L.'s hearsay statements were reliable and (2) that there was sufficient "other corroborative evidence of the abuse or offense" and ruled that K.L.'s hearsay statements were admissible at trial under the child victim hearsay exception, section 90.803(23). Reliability The procedure that trial judges are to use in applying section 90.803(23) has been set forth by the supreme court as follows: First, the trial judge must determine whether the hearsay statement is reliable and from a trustworthy source without regard to corroborating evidence....
...concerning the alleged sexual offense. In Reyner v. State,
745 So.2d 1071 (Fla. 1st DCA 1999), the defendant was charged with lewd assault upon his four-year-old niece. The incident occurred while Reyner's wife was babysitting the child. Pursuant to section
90.803(23), the State sought to introduce the father's testimony that his daughter told him that "while Reyner and the child were sharing a bed at `nap time,' Reyner put her on his chest, placed his penis between her legs, and moved her back and forth, and `wet stuff came out of his penis."
745 So.2d at 1072....
...opportunity to be exposed to his penis. Id. at 1073. Under these circumstances, the First District found no abuse of discretion in the trial court's ruling that Reyner's statement to police was sufficient to satisfy the corroboration requirement of section 90.803(23)....
...790 (emphasis in original). The panel first rejected Jones' contention that the rule of lenity required the court to construe any ambiguity in his favor, finding that the rule of lenity applies only to statutes that define criminal offenses and that section 90.803(23) is not such a statute....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal
...The Code provides first that: "All relevant evidence is admissible, except as provided by law." §
90.402. Second, the evidence the appellant sought to introduce, which bears directly on the issue of whether there was delivery with an intent to make a gift, is admissible as a hearsay exception under Section
90.803(3)(a): (3) THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 243
...hild's competency. The defendant entered a plea of nolo contendere reserving the right to appeal the issues raised by the motion which issues the trial court found were dispositive of the case. The trial judge in this case followed the provisions of section 90.803(23), Florida Statutes (1985), the child victim of sexual misconduct hearsay exception....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
rule barring the admission of hearsay testimony. §
90.803(6), Fla. Stat. (2014). This business records exception
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 339, 2009 WL 127784
...State,
919 So.2d 647, 649 (Fla. 1st DCA 2006). Hearsay statements are inadmissible absent an applicable exception. See §
90.802, Fla. Stat. (2005); State v. Freber,
366 So.2d 426 (Fla.1978). The State argued at the trial that the "state of mind" hearsay exception in section
90.803(3), *1129 Florida Statutes (2005), applied, and defense counsel's objection was overruled....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2002 WL 53899
...sit, this would indicate a vascular infirmity. In Slomka's deposition, which Hughes read into evidence, the doctor claimed he did check for pulses. But the absence of any mention of this in Slomka's treatment notes implied that he did not do so. See § 90.803(7), Fla Stat....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1997 WL 39603
...[2] Had character been an issue, the State could only have rebutted the appellant's claim by reputation evidence. §
90.405, Fla.Stat. [3] The State argued that the testimony was relevant to show the appellant's "state of mind," and relied upon Jones v. State,
440 So.2d 570 (Fla. 1983) and section
90.803(3)(a), Florida Statutes....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1999 WL 43521
...Black did not call Kimbrell as a witness. Black did put on evidence through the testimony of neighbors that Feltz had shot at Adams in the past, reflecting Feltz's animosity toward Adams. Black testified that, even if Kimbrell's hearsay testimony were admissible under section 90.803(3)(a)(2), Florida Statutes (1993) (to prove or explain acts of subsequent conduct of the declarant), she would not have called Kimbrell and opened the door for cross-examination as to statements Adams made....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...The investigating officer's testimony concerning Mullins' description of the second person was clearly hearsay, and the objection should have been sustained. Since the officer's notes were not admitted into evidence, we need not and do not determine whether such notes would have qualified as a hearsay exception under Section 90.803(6), Florida Statutes (1979)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1996 WL 60460
...r a ruling. See State v. Hinton,
305 So.2d 804, 808 n. 2 (Fla. 4th DCA 1975). We further determine that this did not constitute fundamental error. Cf. State v. Townsend,
635 So.2d 949 (Fla.1994) (court's failure to make specific findings mandated by section
90.803(23), Florida Statutes (1987), is not fundamental error)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2008 WL 372809
...been placed in issue by the evidence."); Simpson v. State,
824 So.2d 280 (Fla. 4th DCA 2002). Appellant also argues that the court abused its discretion in admitting the contents of the 911 call as an excited utterance or spontaneous statement under section
90.803(1)(2), Florida Statutes (2005)....
...tatement, because it was "describing or explaining an event or condition made while the declarant was perceiving the event or condition." *1108 The event described was that Vanevery was pounding on his door and trying to burn paperwork from the car. § 90.803(2), Fla....
CopyCited 3 times | Published | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 1200
issue, are admissible in evidence pursuant to section
90.803(18), Florida Statutes (1989), and thus are
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1992 WL 25681
...urt and was self-serving and exculpatory. We find the trial court's ruling to be clear error based on the following analysis. Relevant, out-of-court statements of a party opponent, as is the statement at issue, are admissible in evidence pursuant to section 90.803(18), Florida Statutes (1989), and thus are an exception to the hearsay rule....
...At trial, the girlfriend testified that the defendant told her that he had been in a fight with one of the victims on the day of the murders. While the statement in and of itself was not conclusive on *121 the issue of guilt, the supreme court held it to be admissible under section 90.803(18)(a) because it was made by a party to the lawsuit....
...denied,
353 So.2d 680 (Fla. 1977). To the extent that Moore v. State,
530 So.2d 61 (Fla. 1st DCA 1988), conflicts with our holding here, we reject its requirement that the prosecution prove a statement's falsity before the state may offer the statement into evidence under section
90.803(18). We find nothing in the clear language of section
90.803(18) which requires such a showing before an admission may be deemed relevant and thus admissible. While we recognize apparent conflict with Moore, we refuse to certify the conflict due to the supreme court's recent pronouncement on the issue in Christopher. Accordingly, because the statement is an admission as defined by section
90.803(18), which the state intends to introduce in its case-in-chief, we grant rehearing, vacate our original opinion, and reverse the order appealed....
...'s case-in-chief. The State's attempt to bolster one inadmissible statement by the use of another inadmissible statement was improper. See, e.g., Romani v. State,
542 So.2d 984 (Fla. 1989). Accordingly, I would affirm. NOTES [1] The relevant part of section
90.803 states: (18) ADMISSIONS....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 19049, 2009 WL 4591048
...319, 967 A.2d 285, 301-03 (2009) (referring a proposed rule creating a forfeiture by wrongdoing hearsay exception to the New Jersey Legislature). Other Grounds for Admission of the Threats The State further argues that the double-hearsay statements are also admissible under the state of mind exception found in section 90.803(3), Florida Statutes....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2001 WL 1538064
...Therefore, the officer's memory was not refreshed, and his testimony could not form the basis of the juvenile's adjudication of delinquency. Moreover, the State never offered to read the officer's arrest form as past recollection recorded, under *412 section 90.803(5), Florida Statutes (1999), an exception to the hearsay rule....
...[2] Thus, the state failed to carry its burden of proving every essential element of the crime charged. See Purifoy v. State,
359 So.2d 446 (Fla.1978); Kilbee v. State,
53 So.2d 533 (Fla.1951); see also Smith v. State,
546 So.2d 459 (Fla. 4th DCA 1989). Accordingly, the adjudication of delinquency is reversed. NOTES [1] Section
90.803(5), provides: Recorded, recollection.A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been...
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2001 WL 1538056
...An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant's will. 2. A statement made under circumstances that indicate its lack of trustworthiness. § 90.803(3), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2007 WL 4561593
...Thus, the estimate constituted hearsay as defined in section
90.801(c), Florida Statutes (2006), and was inadmissible under section
90.802, Florida Statutes (2006), unless an exception is created by another statutory provision. Written opinions or estimates may qualify as a business record exception to the hearsay rule under section
90.803(6), Florida Statutes (2006), if production of estimates is a regularly conducted business *921 activity....
...To lay a proper foundation for the business record exception, however, the proponent of the evidence must "call a witness who can show that each of the foundational requirements set out in the statute is present." Forester v. Norman Roger Jewell & Brooks Intern., Inc.,
610 So.2d 1369, 1373 (Fla. 1st DCA 1992); §
90.803(6)(a), Fla. Stat. Alternatively, section
90.803(6)(c) provides that the proponent can also establish the foundation by certification or declaration....
...ould have been sustained." Williams v. State,
850 So.2d 627, 628 (Fla. 2d DCA 2003)(reversing and remanding for a new restitution hearing). "On remand, written estimates may suffice, so long as they satisfy the requirements of business records under section
90.803(6), Florida Statutes (2005), or are uncontested." I.M....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2001 WL 1613797
...at the documents fell within the public-record exception to the hearsay rule. The Board, in entering its final order, determined that the ALJ erred in disregarding the grading sheets, which were admissible as business records or public records under section 90.803(6) or (8), Florida Statutes (1999)....
...We agree with the Board that the grading sheets were admissible evidence under the business-records exception to the hearsay rule, and because the sheets disclose that Barfield had failed the clinical portion of the Florida Dental License Examination, he was not entitled to licensure. Section 90.803(6)(a), Florida Statutes (1999), provides that the following documents are admissible under the hearsay exception: RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY. (a) A memorandum, report, record, or data compilation, in any form, o...
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2003 WL 22927154
...say statements made to the recipients of his telephone calls while he was kidnaped and being threatened, beaten, and forced to try to get money to pay his captors, was admissible either as a spontaneous statement or an excited utterance, pursuant to section 90.803(1) and (2)....
...1993). [3] See Nelson v. State,
688 So.2d 971 (Fla. 4th DCA), rev. denied,
697 So.2d 1217 (Fla.1997). [4] See Howard v. State,
616 So.2d 484 (Fla. 1st DCA 1993); Thomas v. State,
599 So.2d 158 (Fla. 1st DCA), rev. denied,
604 So.2d 488 (Fla.1992). [5] Section
90.803 provides for two related exceptions: (1) Spontaneous statement.A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except w...
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2003 WL 21817494
...When Morse asked for more crack, Harmon refused, and Morse then hit him over the eye with an object, drawing blood. After the fight, Harmon walked out the door, passing the two co-workers. Harmon contends that his statement, "he's got my money" was admissible as an exception to the hearsay rule. Section 90.803(2), Florida Statutes (2001), allows the admission of "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." To be ad...
...he excitement caused by the startling event; and 3) The statement must have been made before there was time to contrive or misrepresent. See State v. Jano,
524 So.2d 660, 661 (Fla. 1988). We conclude that Harmon's statement meets the requirements of section
90.803(2)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1992 WL 170976
...3d DCA 1991); Russell v. State,
572 So.2d 940, 942 n. 3 (Fla. 5th DCA 1990); and Stone v. State,
547 So.2d 657, 660 (Fla. 2d DCA 1989), all requiring a similar objection in order to preserve an issue for appeal under a closely analogous provision in section
90.803(23), Florida Statutes....
...of closed circuit television? The appellant also contends that the trial court erred in allowing various witnesses to testify as to the out-of-court statements of the alleged child victim. He argues that the statements were improperly admitted under section 90.803(23), Florida Statutes (1990 Supp.), because the trial court failed to make the specific findings of fact required by section 90.803(23)(c)....
...I find myself in disagreement with the majority's disposition of appellant's first and ninth points on appeal. As to those points, I agree, for the reasons discussed in the majority opinion, that the trial court *38 failed to make the necessary findings of fact required by section
90.803(23) to support the admissibility of the child witness's hearsay statements and the necessary findings required by section
92.54 to support the court's decision to allow the child witness to testify by closed circuit video....
...I do not agree that the objecting party, in this case defense counsel, in order to preserve the objection for appellate review, must specify each deficiency in the trial court's findings of fact after they are stated on the record by the court as required by sections
90.803(23) and
92.54....
...ckson v. State,
456 So.2d 916 (Fla. 1st DCA 1984), involves different considerations than does compliance with the statutory requirements to set forth on the record findings of fact sufficient to admit otherwise inadmissible testimony under sections
90.803(23) and
92.54. The ground of the objection to an expert's qualifications, as well as the professional competency of the evidence being offered, of necessity must be specified at the time the expert testimony is offered. The statutory requirement in sections
90.803(23) and
92.54 that the basis of the court's ruling be set forth on the record serves an entirely different purpose, as previously discussed....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2000 WL 1055793
...The spontaneous statement exception and the excited utterance exception often overlap. However, as noted by Professor Ehrhardt: The two exceptions differ mainly in the amount of time that may lapse between the event and the statement describing the event. Under Section 90.803(2) [excited utterance] it is not necessary that there be contemporaneity between the event and the statement. As long as the excited state of mind is present when the statement is made, the statement is admissible if it meets the other requirements of Section 90.803(2)....
...If a person involved in an automobile accident is rendered unconscious, a statement made a number of days after the accident when he or she regains consciousness can be admitted as an excited utterance if it was made while the person was excited about the accident. Under Section 90.803(2) [excited utterance] the statement must only "relate" to the event causing the excitement; Section 90.803(1) [spontaneous statement] is limited to statements which "describe or explain" the event....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 12173, 2010 WL 3239086
...*884 We further find no error in the admission of the hearsay testimony from the occupants of the car that entered the parking lot as the defendants left, which identified the get-away car as an Altima. The trial court properly found the testimony constituted a spontaneous statement. See § 90.803(1), Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1993 WL 104881
...sed to be used against him. Burks v. State,
613 So.2d 441 (Fla. 1993). The only "evidence" which arguably could have established the corpus delicti in the case at bar was the victim's hearsay statement to the investigating officer. We recognize that section
90.803(23), Florida Evidence Code, (the hearsay exception for statements of child abuse victims) generally permits admission of these statements....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1997 WL 155122
...4th DCA 1988). Even though probation department records may, if a proper predicate is established, be admitted into evidence under the business records exception to the hearsay rule, the state did not attempt to introduce those records in this case. § 90.803(6), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1994 Fla. App. LEXIS 3830, 1994 WL 149845
...The nurse was recording information taken from appellee as part of appellee's medical history when she arrived at the hospital on the day of the accident for treatment of her injuries. The nurse recorded that appellee stated she fainted or passed out and fell. The statement was admissible under section 90.803(4) as pertinent to diagnosis and treatment....
...The majority also finds that the trial court erred in excluding the appellee's statement to an emergency room nurse. While taking the appellee's medical history, the nurse recorded that the appellee stated she passed out and fell. The majority concludes that this statement was admissible under section 90.803(4), Florida Statutes, as reasonably pertinent to medical diagnosis or treatment because it described past or present symptoms. I cannot agree. Section 90.803(4) provides that hearsay statements are admissible when: made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment ......
...which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment. A trial court's determination of the admissibility of evidence under section 90.803(4) will not be disturbed on review unless the trial court abused its discretion....
...in the hallway carpet was "not relevant to the diagnosis and treatment of her shoulder"). Although the majority characterizes the appellee's statement as describing a past or present symptom, this characterization does not affect the analysis under section 90.803(4). Once a statement qualifies under section 90.803(4), the test for admissibility is whether the statement is reasonably pertinent to medical diagnosis or treatment, which usually is evaluated from a physician's perspective....
...reating the appellee. Based on this record, I conclude that the trial court did not abuse its discretion in disallowing the nurse's testimony. NOTES [1] Although not argued below, appellee's statement would also be an admission against interest. See section 90.803(18); Wilkinson v....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1998 WL 193115
...The report and the letter would not meet the business records exception to the hearsay rule because they were not kept and made in the regular course of the business activity. See McKenzie Tank Lines, Inc. v. Roman,
645 So.2d 547 (Fla. 1st DCA 1994); §
90.803(6), Fla....
CopyCited 3 times | Published | Supreme Court of Florida | 1995 WL 215026
...The first time Dupree stood trial, a mistrial was declared because the jury could not reach a verdict. The retrial resulted in a conviction of first-degree murder. Prior to the first trial, the State supplied the requisite ten days' notice of intention to rely on section 90.803(23), Florida Statutes (1993), with regard to certain witnesses' testimony relating to previous statements made by the two-year-old murder victim's six-year-old brother, Joshua Turnsill, concerning the crime....
...xcepted from admissibility merely because this child was not the object of the attack." Id. at 942. The Fifth District reasoned that "[a] victim is a victim regardless of any charging document." Id. We do not read this hearsay exception contained in section 90.803(23) that broadly....
...Illinois ],
476 U.S. 530 at 543, 106 S.Ct. [2056] at 2063 [
90 L.Ed.2d 514]." Idaho v. Wright,
497 U.S. 805, 818,
110 S.Ct. 3139, 3148,
111 L.Ed.2d 638 (1990). *432 As explained in this Court's decision in Feller v. State,
637 So.2d 911 (Fla. 1994), "[s]ection
90.803(23), Florida Statutes (1989), creates a limited exception to the hearsay rule for reliable statements of child victims, eleven years or younger, which describe an act of child or sexual abuse." Id....
...at 915 (emphasis added). While we agree that a child can be abused by what the child witnesses, and thereby be a child victim, see Charles W. Ehrhardt, Florida Evidence § 803.23 (1994 ed.), for hearsay statements of the child to be admissible under section 90.803(23), the prosecution of the defendant must be based upon the victimization of the child whose statements are being related....
...properly before us. Accordingly, we approve the district court's decision and remand the cause for proceedings consistent with the decision herein. It is so ordered. GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING and ANSTEAD, JJ., concur. NOTES [1] Section 90.803(23), Florida Statutes (1993), is entitled: "HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM."
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 14537
introduce, under the child hearsay rule in section
90.803(23), Florida Statutes (2014), a video of S
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2320264
...or inadmissible under the business record exception." Sunshine also relies on Roy's failure to object to the documentary evidence. Sunshine argues that "[m]any of the documents at issue constitute business records that fit within the exception under section 90.803(6)[, Florida Statutes (2002)]." According to Sunshine, the "records were introduced and explained by Sunshine's document custodian" and many of them such as evaluation notes, invoices, contemporaneous memos, exit interview notes, an...
...The objecting party shall be given an opportunity to explain the grounds for the objection. Failure of a party to voice an objection to any evidence introduced at the hearing shall not prevent the party from raising the objection on appeal to the Unemployment Appeals Commission. Fla. Admin. Code R. 60BB-5.024(3)(d). Section 90.803(6) sets forth the requirements for the hearsay rule exception for records of regularly conducted business activity....
...sources of information or other circumstances show lack of trustworthiness." In the instant case, it appears that certain of the documents submitted by *951 Sunshine might well have qualified as records of regularly conducted business activity under section
90.803(6), which would have been "admissible over objection in civil actions" and thus "sufficient in [themselves]" pursuant to section
120.57(1)(c) to support a finding with respect to misconduct by Roy....
...ould be sufficient in itself to support a finding of misconduct. Although Sunshine's representative at the hearing testified that he was the custodian of Sunshine's records, he provided no testimony to establish that any of the three requirements of section 90.803(6) were satisfied....
...he lower tribunal were correct"). Those formalities are not, however, eliminated entirely. A party seeking to rely on business records as sufficient in themselves to support a finding in an administrative proceeding must make the showing required by section 90.803(6)....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2007 WL 2710748
...[Signature] MICHELLE GLISAR, RECORDS MANAGEMENT ANALYST Defendant objected to the offer on the ground the document was not self-authenticating and did not fall within any exception to the rule excluding hearsay. The State argued the letter was admissible under the public records exception to the hearsay rule, Section 90.803(8), Florida Statutes (2002)....
...by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. § 90.803(8), Fla....
...ed *310 by the Department and observed by Analyst Glisar for purposes of assisting the State in enhancing defendant's sentence. Ward contends Analyst Glisar qualifies as "other law enforcement personnel" for purposes of the public records exception. § 90.803(8), Fla....
...Stat. (2002). Although the Florida legislature has proven itself fully up to the task of crafting and varying the scope of the term "law enforcement personnel" in the Florida Statutes, it has not defined "law enforcement personnel" for purposes of section 90.803(8) of the Florida public records law....
...Accordingly, we certify the following question to the Florida Supreme Court as one of great public importance: WHETHER A CERTIFICATION OF A DEFENDANT'S RELEASE DATE BY THE DEPARTMENT OF CORRECTIONS IS ADMISSIBLE IN SENTENCING PROCEEDINGS UNDER THE HEARSAY EXCEPTION FOR PUBLIC RECORDS AND REPORTS UNDER SUBSECTION 90.803(8), FLORIDA STATUTES? Defendant's conviction and sentence are affirmed with question of great public importance certified....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1995 WL 516434
...court erred when it denied Wykle's motion for a judgment of acquittal as to count I of the amended information. We affirm Wykle's convictions. Prior to trial, the state served notice that it sought to introduce L.C.'s hearsay statements pursuant to section 90.803(23), Florida Statutes (1991)....
...The trial court ruled that the witnesses' hearsay testimony was admissible, finding that the statements met the requirements of the statute that the "time, content, and circumstances of the statement[s] provide sufficient safeguards of reliability." See § 90.803(23)(a)(1), Fla....
...(1991). Wykle first contends that the trial court erred in admitting L.C.'s hearsay statements because the state failed to demonstrate *1289 the reliability of the statements and, further, because the trial court failed to make the findings required by section 90.803(23)(c)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1998 WL 698829
...to place his penis in M.S.'s buttocks. Further, Dr. Snyderman said, M.S. told her that the same person fondled his penis and kissed him. Corpus argues that M.S.'s statements to Dr. Snyderman were inadmissible hearsay, as to which the requirements of section 90.803(23), Florida Statutes (1995), were not followed....
...e that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. No such notice was given, and no such hearing was conducted, in regard to Dr. Snyderman's testimony at Corpus's trial. The State contends that section 90.803(23) did not apply here, because Dr. Snyderman's hearsay testimony was admissible under section 90.803(4)....
...We do so in this instance only because the issue is likely to recur at Corpus's retrial. As sometimes happens, neither party's position is entirely correct. M.S.'s statement to Dr. Snyderman that his alleged attacker attempted to have anal intercourse with him was admissible under section 90.803(4), because it was reasonably pertinent to her diagnosis and treatment of the boy....
...State,
640 So.2d 151 (Fla. 2d DCA 1994). However, the balance of the boy's statements to the doctor, in which he alleged matters that could have no medical ramification, were not admissible under that statute. Rather, the admissibility of those statements was controlled by section
90.803(23), with its attendant requirements of prior notice and judicial assessment of reliability....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2008 WL 4489253
...ge. We note that the state argues that the prior inconsistent statements are admissible as substantive evidence because they were corroborated by the deputy's testimony. In support of this contention, the state cites the child hearsay exception. See § 90.803(24) Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2017 WL 4393245
excitement caused by the event or condition,” §
90.803(2), Fla. Stat. (2014); or (2) if it is “[a] spontaneous
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2014 WL 5139296
...It was never suggested that he ever
worked for Washington Mutual or had any knowledge about the creation of the
letter or about Washington Mutual’s business practices regarding such letters, as
would be required to admit the hearsay document as a business record. See §
90.803(6), Fla....
...for some pages and Washington Mutual Bank for other. Counsel for Appellants
objected to the lack of foundation to admit this hearsay document into evidence
and noted that Mr. Benefield was not a records custodian for SPS or any of the
previous loan servicers. See §§
90.801,
90.803(6), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1997 WL 633941
...chase drugs and that he had refused. The trial court excluded all of this testimony on the ground that it was hearsay. Defense counsel argued that, because the defendant was relying on the entrapment defense, the hearsay exception for state of mind, section 90.803(3), Florida Statutes, applied and rendered the testimony admissible to show the defendant's state of mind....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 28 Fla. L. Weekly Fed. D 2388
...e expert *1237 testimony of Dr. Jones, a psychiatrist, proffered by appellant. Although a number of additional issues are raised by appellant, we find it necessary to only address the improper admission of hearsay testimony by failing to comply with section 90.803(23)(c), Florida Statutes (1999)("The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection."). The parties agree that the trial court did not make specific findings of fact on the record as required by section 90.803(23)(c)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...s financially dependent upon a man in process of divorce, with whom she lived in expectation of eventual marriage; the child displayed anxiety over the situation, as evidenced by spontaneous statements that were admissible to show her state of mind, section 90.803(3), Florida Statutes (1981); and the child lost, during her Canadian absences, a regular and continuing relationship with her Jacksonville father, which on this particular record could have been regarded as especially beneficial....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1994 WL 637288
...idence sufficient to support a finding of "misconduct" under section
443.036(26), the *550 lab report must be admissible as an exception to the hearsay rule. The business records exception may apply to a laboratory test report if the requirements of section
90.803(6), Florida Statutes, are satisfied....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2007 WL 3355402
...the victim stated to him that she knew her attacker, although he did not testify that she identified Esteban. He noted that he does not usually ask such information. This evidence constituted hearsay and was not for the purpose of medical diagnosis. § 90.803(4), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2001 Fla. App. LEXIS 6164, 2001 WL 484478
...3139,
111 L.Ed.2d 638 (1990), does not control this case. The original opinion in this case was not decided on constitutional grounds as to whether the hearsay violated the defendant's rights under the Confrontation Clause of the Sixth Amendment. Rather, this case was based on the wording of section
90.803(23)(a)2.b., Florida Statutes (2000)....
CopyCited 2 times | Published | District Court of Appeal of Florida
spontaneous statement under section
90.803(1) or an excited utterance under section
90.803(2), Florida Statutes
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1997 WL 282354
...Moore,
485 So.2d 1279, 1281 (Fla.1986). The Florida Supreme Court recently reaffirmed this rule in State v. Green,
667 So.2d 756 (Fla.1995), a case in which the victim's prior inconsistent statements could have been admitted under the child victim hearsay exception, section
90.803, Florida Statutes (1989)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1996 WL 280029
...was suspended and introduced the school records for support. Ms. Keeling's oral statements as to what she was told were clearly hearsay under section
90.802, Florida Statutes (1995). Additionally, the record does not show that the introduction of the school records was done in accordance with section
90.803, Florida Statutes (1995). A school official who either had personal knowledge of E.C.'s suspension, or who was a custodian of the records who could qualify them as a business record, in accordance with section
90.803(6), should have testified....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2013 WL 2232321, 2013 Fla. App. LEXIS 8167, 38 Fla. L. Weekly Fed. D 1145
testimony in King, the State had to comply with section
90.803(6), Florida Statutes. The State failed to do
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 6922, 2010 WL 1979273
...1st DCA 2010). See Johnson v. State,
858 So.2d 1274 (Fla. 3d DCA 2003). Neither is there any error in the admission of the child's hearsay statements. The trial court properly conducted a hearing and its findings complied with all the requirements of section
90.803(23), Florida Statutes (2005)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2001 WL 505655
...Ellis, Assistant Attorney General, Tallahassee, for Appellee. KAHN, J. In this direct appeal, Fred Hanks raises two points as fundamental error. Specifically, Hanks argues that the trial court failed to make case specific findings of reliability of hearsay by a child victim of sexual battery pursuant to section 90.803(23), Florida Statutes (1999)....
...Hanks also asserts that the trial court erred by permitting the introduction into evidence of a doctor's deposition, in lieu of trial testimony, where Hanks was not present during the deposition. We affirm. First, Hanks argues that the trial court erred because its findings, pursuant *635 to section 90.803(23), were not case specific as "the court merely referred to the criteria in 90.803(23) or referred to other matters without a specific factual finding." Although Hanks raises this issue as one of fundamental error, "a trial court's failure to make sufficient findings under section 90.803(23) in and of itself does not constitute fundamental error." Anderson v....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 1183
...he business records exception to the rule against hearsay. However, because the information in the document was already before the jury, the error was harmless. See Detroit Marine Engineering, Inc. v. Maloy,
419 So.2d 687, 692-3 (Fla. 1st DCA 1982). Section
90.803(6), Florida Statutes (1983), allows admission of records kept in the course of regularly conducted business activity when it is the regular practice of the business to make such a record....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1992 WL 61440
...See Glendening,
536 So.2d at 221; Clark v. State,
363 So.2d 331, 333-34 (Fla. 1978). Finally, we have reviewed the various attacks made by the defendant on the admissibility of the hearsay statements of the child-victim and conclude that such statements were properly admitted under Section
90.803(23), Florida Statutes (1989)....
CopyCited 2 times | Published | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 569, 2017 WL 1954975, 2017 Fla. LEXIS 1067
excitement caused by the event or condition.” §
90.803(2), Fla. Stat. (2012). “[T]o qualify as an excited
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 4448, 2009 WL 1272334
...ehavior and (2) was probative of appellant's guilt. We next address the hearsay statements made by the victim in this case. Appellee asserts the disputed hearsay statements were admissible pursuant to the state of mind exception to the hearsay rule. Section 90.803(3)(a), Florida Statutes (2006), governs the state of mind exception to the hearsay rule and provides in pertinent part: (a) A statement of the declarant's then-existing state of mind, emotion, or physical sensation, including a stateme...
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2006 WL 503235
...The trial judge properly admitted the statements in question as an exhibit of numerous admissions made by the Appellant. See Delacruz v. State,
734 So.2d 1116, 1122 (Fla. 1st DCA 1999) (finding that defendant's prior statements, whether exculpatory or not, were admissible against defendant as admissions under section
90.803(18), Florida Statutes (citing Charles W....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2008 WL 782532
...Whitehead's statements to these officers were excited utterances admissible as an exception to the hearsay rule and that introduction of such testimony would violate Paraison's Sixth Amendment right of confrontation as recognized in Crawford v. Washington,
541 U.S. 36,
124 S.Ct. 1354,
158 L.Ed.2d 177 (2004). See §
90.803(2), Fla....
...By the same token, Mrs. Whitehead's son cannot testify as to what he overheard his mother say to Officer Hayes. However, Mrs. Whitehead's statement that she had been robbed, made while calling for help, is admissible because it is an excited utterance admissible under section
90.803(2) of the Florida Statutes and because it is non-testimonial, and thus outside Crawford, Davis, and Lopez. See Barron v. State, 32 Fla. L. Weekly D2002, ___ So.2d ___,
2007 WL 2376632 (Fla. 3d DCA Aug. 22, 2007) (concluding that two anonymous phone calls placed close to a violent event were admissible as either spontaneous statements under section
90.803(1) or excited utterances under section
90.803(2)); see also Davis, 547 U.S....
...they kept went from one room to another room . . . [w]hy they keep hitting me? I gave them what they want. I had did everything they said to do. I said I would cooperate with you. . . . They taped me up. These statements, as the trial court found, are admissible as excited utterances. See § 90.803(2), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2009 WL 1586819
...by telling him that he would not be able to play with his toys if he told anyone what Appellant had done with the victim. This statement constituted an admission by Appellant to J.E.A., which would have been admissible as a hearsay exception under section 90.803(18)(a), Florida Statutes (2008), if J.E.A....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1994 WL 284108
...We are asked to consider the scope of a "nontraditional" exception to the rule under which hearsay is excludable from evidence. We conclude that, if "the declarant child" does not report himself a victim of the child abuse or neglect which is recounted in the out-of-court declaration, section 90.803(23), Florida Statutes (1993), does not authorize the admission of testimony reciting the child's assertion, as the equivalent of testimony to the fact asserted....
...We reverse and remand for a new trial because we are not convinced beyond a reasonable doubt that hearsay erroneously allowed in evidence did not affect the verdict. Before the first trial, the prosecution supplied the requisite ten days' notice of intention to rely on section 90.803(23), Florida Statutes (1993), with regard to four witnesses. § 90.803(23)(b), Fla. Stat. (1993). When the defense objected to all four witnesses' hearsay statements, an evidentiary hearing took place, as contemplated by section 90.803(23)(a)(1), Florida Statutes (1993), after which the court overruled all defense objections....
...Defense counsel objected specifically on grounds that the exception did not apply to a declarant who was not a victim. The issue is preserved for appellate consideration. Cf. State v. Townsend,
635 So.2d 949, 950 (Fla. 1994) (holding pretrial motion preserved hearsay objection to statement offered under section
90.803(23), Florida Statutes)....
...ns other than those "firmly rooted" in our jurisprudence. Idaho v. Wright,
497 U.S. 805,
110 S.Ct. 3139,
111 L.Ed.2d 638 (1990) (Sixth Amendment); State v. Townsend,
635 So.2d 949, 951 (Fla. 1994) (article I, section 16 of the Florida Constitution). Section
90.803(23), Florida Statutes (1993), itself requires that before a statement may be admitted under the statute, the trial court must conduct a hearing outside the presence of the jury and must find that "the time, content, and circumstances of the statement provide sufficient safeguards of reliability." §
90.803(23)(a)1....
...ity of the assertion, the reliability of the child victim, and any other factor deemed appropriate." Id. The statute further requires the court to "make specific findings of fact, on the record, as to the basis for its ruling under this subsection." §
90.803(23)(c). Feller v. State,
637 So.2d 911, 915-16 (Fla. 1994). Trial counsel's hearsay objection necessitated the trial court's making the findings required by section
90.803(23)(c), Florida Statutes, and preserved the issue for appellate consideration. [4] *128 "Section
90.803(23), Florida Statutes (1989), creates a limited exception to the hearsay rule for reliable statements of child victims, eleven years or younger, which describe an act of child or sexual abuse." Feller v....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2004 WL 1392396
...Herrera said that she was forced to pose for nude photographs. Prior to Miller testifying concerning this history, defense counsel objected contending that these statements were inadmissible hearsay. The trial court overruled the objection stating that the testimony fell under section 90.803(4), Florida Statutes (2002), which provides the following exception to the hearsay rule: Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has kn...
...st or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment. The defendant argues that Miller's testimony does not fall within section 90.803(4) because the examination was not done for the purpose of diagnosis or treatment, but rather for the purpose of finding physical evidence to corroborate Mrs....
...State,
620 So.2d 180 (Fla.1993), the supreme court held that an alleged victim's statement to a doctor that she had been sexually assaulted orally, vaginally, and anally were reasonably pertinent to the physician's diagnosis or treatment of the victim's wounds and therefore an exception to the hearsay rule pursuant to section
90.803(4)....
...ssible because it was not pertinent to the diagnosis or treatment. Id. Therefore, Mrs. Herrera's statement to Miller that she was forced to have sex and that semen was sprayed in her face is admissible as an exception to the hearsay rule pursuant to section 90.803(4)....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2011 WL 2652389
...shall upon conviction thereof be guilty of a misdemeanor of the first degree. . ."). [4] This underlying indicia of reliability provides the very same rationale for permitting introduction of "excited utterances" as an exception to the hearsay rule. § 90.803(2), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2008 WL 2901861
...es-Salgado. Defense counsel did not object to the admission of the codefendants' statements to the officer. Instead, just before the start of trial, defense counsel volunteered that he believed that the codefendants' statements were admissible under section 90.803(18)(e), Florida Statutes (2005), and he sought to have the court give the cautionary instruction provided for by that statute....
...the statements. Defense counsel conceded to the admissibility of these statements; however, the statements were not admissible for four different reasons. First, contrary to defense counsel's belief at trial, the statements were not admissible under section 90.803(18)(e). Section 90.803(18)(e) provides for the admission of statements made by coconspirators during the course of the conspiracy and in furtherance of it. Longstanding Florida caselaw holds that statements made after the crime has been committed and that do not "further" the conspiracy are inadmissible under section 90.803(18)(e)....
...ime was made did not "further" the conspiracy and were therefore inadmissible); Usher v. State,
642 So.2d 29, 31 (Fla. 2d DCA 1994) (holding that statements made by a coconspirator after the kidnapping had been accomplished were not admissible under section
90.803(18)(e)); Isom v. State,
619 So.2d 369, 372 (Fla. 3d DCA 1993) (holding that coconspirator's postarrest statements were not in furtherance of the conspiracy and so were not admissible under section
90.803(18)(e)); Thomas v. State,
349 So.2d 743, 744 (Fla. 1st DCA 1977) (holding that coconspirator's statement to police during the course of the conspiracy was intended to expose the conspiracy rather than further it and so was not admissible under section
90.803(18)(e))....
...Here, there is no question that Antunes-Salgado's alleged coconspirators' postarrest and post- Miranda statements occurred after the conspiracy was over and did nothing to "further" the conspiracy. *226 Therefore, the statements were inadmissible under section 90.803(18)(e), and defense counsel was ineffective for conceding admissibility on this basis....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 10455, 35 Fla. L. Weekly Fed. D 1574
...Levine "never testified that the written statement accurately reflected the facts she allegedly observed on the date of the charged offenses or that she was being truthful at the time she wrote the statement", the written statement should not have been admitted pursuant to section 90.803(5), Florida Statutes (2008). We first find that this issue was not properly preserved for appellate review. Specifically, at trial, Polite never made the argument that he now attempts to makethat the foundation for admission under section 90.803(5), Florida Statutes (2008), may only be laid with testimony at trial from the declarant (the person who made the out-of-court statement)....
...State,
894 So.2d 935 (Fla.2005)). Applying this standard, it is clear that this issue was not preserved for review. Even if Polite had preserved this issue for review, we believe that the evidence presented by the State was sufficient to secure admission of the statement under section
90.803(5). The hearsay exception for past recollection recorded provides: Section
90.803(5) Recorded Recollection The provision of s....
...did not testify that the recordings accurately reflected their memories of events when made); Montano v. State,
846 So.2d 677 (Fla. 4th DCA 2003) (holding tape recorded statement given to police shortly after criminal incident was inadmissible under section
90.803(5) when witness did not remember its contents and did not testify that it correctly reflected her knowledge or that she tried to be truthful at the time she made the statement). We disagree with these cases because they are contrary to the plain language of the statute and rule. [3] Section
90.803(5) simply requires as a foundation that the statement is "shown to have been made by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly." The statute does not say that this "showing" must always (or only) be made by testimony from the declarant....
...Beyond this, the victim testified that she could not remember any more details at the time of trial. As pointed out by the State, this event would qualify as "a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately." § 90.803(5), Fla....
...she gave it; that she was still consumed with the emotions of the event when talking with police; and that other evidence corroborated her statement, we find that there was sufficient evidence to lay a foundation for admission of the statement under section 90.803(5), even though the declarant herself never confirmed the accuracy of the statement at trial....
...culate about what might have occurred. I also agree with my colleagues that the accuracy of the statement may be established *944 through circumstantial proof. The recorded recollection statute requires a "show[ing]" that the memorandum is accurate. § 90.803(5), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1997 WL 4561
...Defendant moved for summary judgment, and submitted affidavits of two employees who state that they have searched company *856 records and find no record of plaintiff's telephone call. Conspicuous by its absence is any assertion that defendant makes a written record of all telephone calls which defendant receives. See § 90.803(7) Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 189, 2015 WL 71849
...We agree.
Whether evidence is admissible under an exception to the hearsay rule
is a question of law subject to de novo review. Browne v. State,
132 So. 3d
312, 316 (Fla. 4th DCA 2014).
Florida’s business records exception to the hearsay rule is set forth in
section
90.803(6)(a), Florida Statutes (2011)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2005 WL 17722
...Implicitly recognizing this, the Commission argues that Pauldon's statement falls within either the "excited utterance" or "spontaneous statement" exception to the hearsay rule, and thus could serve as a substantive evidentiary basis for finding a violation. See § 90.803(1) and (2), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 1039, 40 Fla. L. Weekly Fed. D 296
...e
principles).
Payment History Hearsay Objection
Holt argues that the asset manager was not able to provide the proper
foundation to establish that the payment history was admissible under the
business records exception to the hearsay rule.
Section 90.803(6)(a), Florida Statutes (2013), provides:
(a) A memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinion, or diagnosis,
made at or near the time by, or from information trans...
...testimony of the custodian or other qualified witness, or as
shown by a certification or declaration that complies with
paragraph (c) and s.
90.902(11), unless the sources of
information or other circumstances show lack of
trustworthiness.
§
90.803(6)(a), Fla....
...satisfy the requirements to lay the proper foundation for the business
records exception.
As the First District held in Hunter, a witness’s general testimony that
a prior note holder follows a standard record-keeping practice, without
discussing details to show compliance with section
90.803(6), is not
enough to establish a foundation for the business records exception.
When the foundation for the business records exception is sought through
a subsequent note holder for documents containing electronic records of
loan payments made to a prior note holder, the foundation must
demonstrate compliance with section
90.803(6) based on personal
knowledge.
As stated within the statute itself, one way to demonstrate compliance
with section
90.803(6)(a) based on personal knowledge is the use of the
self-authentication rules contained within section
90.902(11), Florida
Statutes (2013), which states:
(11) An original or a duplicate of evidence that would be
admissible under s.
90.803(6), which is maintained in a
foreign country or domestic location and is accompanied by a
certification or declaration from the custodian of the records
or another qualified person certifying or declaring that the
re...
CopyCited 2 times | Published | Florida 4th District Court of Appeal
was met. The wife argues that compliance with section
90.803(6)(c), Florida Statutes (2013), was satisfied
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2003 WL 25872297
...Cannarozzi, Assistant Public Defender, Fort Lauderdale, for respondent. GROSS, J. This is a petition for writ of certiorari filed by the state challenging an order by the circuit court which granted the respondent's motion to strike the state's notice given under section 90.803(24)(b), Florida Statutes (2001), and which declared the statute unconstitutional as it concerns disabled adults....
...Although the victim was twenty-three at the time of the offense, the state contended that she had the mental capacity of a ten-year-old. The state filed the notice of intent to use the victim's hearsay statements to her teachers and law enforcement officers pursuant to the disabled adult hearsay exception contained at section
90.803(24). Hosty moved to strike the notice, arguing that section
90.803(24) was facially unconstitutional, in light of Conner v. State,
748 So.2d 950 (Fla.1999), cert. denied,
530 U.S. 1262,
120 S.Ct. 2719,
147 L.Ed.2d 984 (2000). Following Conner, the circuit court granted the motion to strike and declared section
90.803(24) to be unconstitutional as it applied to disabled adults. Section
90.803 provides, in pertinent part: The provision of s....
...o a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person's ability to perform the normal activities of daily living. In Conner, the supreme court ruled that section
90.803(24) was facially unconstitutional for violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution, insofar as the statute created a hearsay exception for elderly adults. The court distinguished section
90.803(24) from section
90.803(23), Florida Statutes (1995), the child victim hearsay exception, that it had upheld against constitutional attack in State v. Townsend,
635 So.2d 949 (Fla.1994). The court expressly declined to reach the constitutionality of section
90.803(24) "as it applies to disabled adults," since that issue was not "squarely presented" in that case. Conner,
748 So.2d at 960 n. 11. We agree with the trial judge that the section
90.803(24) provision for disabled adults suffers from the same constitutional shortcomings identified by the supreme court in Conner with respect to the elderly person exception to the hearsay rule....
...Section
825.101(4) includes in the definition of "disabled adult" any person over 18 "who has one or more physical or mental limitations that restrict the person's ability to perform the normal activities of daily living." This class is broader than the class of declarants under section
90.803(23) that the court approved in Townsend children "with a physical, mental, emotional, or developmental age of 11 or less." Second, as in Conner, the scope of the testimony admissible under the exception may apply to "any act of abuse or neglect, any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any violent act on the declarant ... disabled adult." §
90.803(24)(a). As in Conner, the disabled "hearsay exception would be broadly applicable to a wide variety of crimes and is not restricted to the [disabled] abuse context."
748 So.2d at 958. Third, the factors set forth in section
90.803(24)(a)1....
...The supreme court's conclusion is equally applicable here: Because the hearsay exception for elderly adults neither ensures the reliability of the hearsay statements admitted at trial, nor in its broadly worded form is supported by the competing policy interests present in the child abuse context, we conclude that section 90.803(24) is facially violative of the defendant's constitutional right to confrontation....
...Contrary to the state's contention, Conner was decided on the claim that the statute was facially violative of a constitutional right, not on the facts of that case. We certify as a question of great public importance the question left open by the supreme court in Conner: AS IT APPLIES TO A DISABLED ADULT, IS SECTION 90.803(24), FLORIDA STATUTES (2001) VIOLATIVE OF A CRIMINAL DEFENDANT'S RIGHT TO CONFRONT WITNESSES UNDER THE FLORIDA AND UNITED STATES CONSTITUTIONS? The petition for writ of certiorari is denied....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1988 WL 139091
...ction, the trial court admitted Garrison's bank statement without the testimony of the custodian of the bank records. The trial court stated that the statement was admissible under the business records exception to the hearsay doctrine. We disagree. Section 90.803, Florida Statutes (1987) states: The provision of s....
...of information or other circumstances show lack of trustworthiness. The term "business" as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. § 90.803(6)(a), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1992 Fla. App. LEXIS 774, 1992 WL 16639
...And appellant produced the affidavit from the records custodian that DPR had no record of it. This certificate of nonlicensure was prima facie proof that no certificate had been issued. See Terranova v. State,
474 So.2d 1206 (Fla. 2d DCA 1985); see also section
90.803(10), Florida Statutes (1989)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2006 WL 399237
...The statement was not being offered to prove the defendant actually took the purse; she admitted her involvement. Rather, the statement was used to explain the events leading up to the defendant's admission, in other words to qualify it under the "adopted admission," admissible under section 90.803(18)(b), Florida Statutes (2003). While the State did not articulate the "adopted admission" provision of section 90.803(18)(b), the court properly admitted the statement as an "adopted admission" exception to the hearsay rule....
...State Farm Fire & Cas. Co. v. Levine,
837 So.2d 363 (Fla.2002). This provision provides an exception to the hearsay rule when "a statement... is offered against a party and is... (b) a statement of which the party has manifested an adoption or belief in its truth." §
90.803(18)(b), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1990 WL 15901
...nviction of that offense. See Jaggers v. State,
536 So.2d 321 (Fla.2d DCA 1988). Second, Poukner contends that the trial court erred in admitting the hearsay statements of the child victims because he failed to make the specific findings required in section
90.803(23), Florida Statutes (1985)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1996 WL 60500
...witnesses to authenticate the chain of custody or that the test was positive. Thus, the record showing that the test was positive for drugs was not admitted. The second district held that the business records exception to the hearsay evidence rule, section 90.803(6), Florida Statutes (1987), did not require the testimony of each person involved in the taking and analyzing of the sample in order to admit the report of the test results into evidence....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 1091, 2009 WL 331004
...For a document to be properly admitted under the business record hearsay exception, it must be created at or near the time of the event, from information transmitted by a person with knowledge, and must be kept in the course of regularly conducted business. See § 90.803(6)(a), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2006 WL 3780895
...n support of the State's theory of the case. Although clearly hearsay, the State argued and the trial court agreed that the statement was an excited utterance, and thus, an exception to the prohibition on the admission of hearsay statements. [2] See § 90.803(2), Fla....
...The Florida Evidence Code, codified in chapter 90 of the Florida Statutes, defines an excited utterance as "a statement or excited utterance relating to a startling event or condition made while the declarant is still under the stress of excitement caused by the event or condition." § 90.803(2), Fla....
...ent caused by the event." State v. Jano,
524 So.2d 660, 661 (Fla.1988)(citing Jackson v. State,
419 So.2d 394 (Fla. 4th DCA 1982)). The statutory language setting forth the excited utterance exception does not contain a temporal requirement. Compare §
90.803(2), Fla. Stat. with §
90.803(1), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2003 WL 23008802
...he had committed oral sex on him when he was 7 or 8 years old. Over defendant's objection, the court admitted part of this hearsay testimonythat the incidents had occurred but not the identity of the assailantas a statement of medical diagnosis. Section 90.803(4) allows the admission of: "Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." § 90.803(4), Fla....
...are admissible under the exception if they are reasonably pertinent to diagnosis or treatment."); [1] Hanson v. State,
508 So.2d 780 (Fla. 4th DCA 1987) (physician's testimony that victim had stated that someone had sex with her was admissible under §
90.803(4) in sexual battery prosecution, but testimony identifying perpetrator was error). Our decision in Begley v. State,
483 So.2d 70 (Fla. 4th DCA 1986), is not to the contrary. In that case, the prosecution sought to admit under section
90.803(4) statements made to a sexual abuse counselor....
...court made an express finding that the child knew that his statements were being used for medical diagnosis and possible treatment. We conclude that the record adequately supports the admission of the hearsay testimony by the Case Coordinator under section 90.803(4)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 22 Am. Disabilities Cas. (BNA) 1445, 2009 Fla. App. LEXIS 18431, 2009 WL 4282945
...1949,
48 L.Ed.2d 416 (1976) (noting that the prior administrative findings made on the plaintiff's claims of racial discrimination are admissible at trial under Fed.R.Evid. 803(8)(C)). However, Florida's public records exception under Florida Statute
90.803(8) is narrower than the federal rule in that it omits a hearsay exception for "factual findings resulting from an investigation made pursuant to authority granted by law...." [8] *606 In this case, Byrd did not object to the hearsay nature of...
...5, 2002); Abebe v. City of Waterloo, Iowa, No. C98-2074 MJM,
2000 WL 34030862 (N.D.Iowa Sept. 7, 2000); Lee v. Executive Airlines, Inc.,
31 F.Supp.2d 1355 (S.D.Fla.1998). Such was the case here, and Byrd's pre-trial motion in limine, pursuant to Florida Statute section
90.803, should have been granted....
...As long as the conclusion is based on a factual investigation and satisfies the Rule's trustworthiness requirement, it should be admissible along with other portions of the report."). Given that standard, I cannot agree that the trial court abused its discretion in this case. Section 90.803, Florida Statutes (2008), provides for the admission of a determination letter as a public record unless there is a showing of untrustworthiness....
...e Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. (emphasis added). Florida Statutes Section 90.803 provides: (8) Public records and reports.Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pur...
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2016 Fla. App. LEXIS 18580
hearsay exceptions. §
90.802, Fla. Stat. (2015). Section
90.803(24), Florida Statutes, creates a hearsay exception
CopyCited 2 times | Published | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 752, 2014 Fla. LEXIS 3681, 2014 WL 6977944
...State,
863 So.
2d 484 (Fla. 4th DCA 2004). Thus, if the statement is offered for the
truth of the facts contained in the statement, then the statement is
hearsay and must fall within one of the recognized hearsay exceptions
outlined in section
90.803 to be admitted into evidence....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1997 Fla. App. LEXIS 13671, 1997 WL 757163
...aw enforcement agency handling the undercover operation in this case. Additionally, the proffer was too vague under section
90.104(1)(b), Florida Statutes (1995), to preserve a hearsay issue whether the state can be a "party" within the meaning of section
90.803(18), Florida Statutes (1995), so that a criminal defendant can introduce as an admission the out-of-court statement of a member of a law enforcement agency involved in his case....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 11433, 2010 WL 3056607
...Further, the Commission's final order affirming the appeals referee's decision states "that the referee properly discounted the hearsay evidence." Hence, it is clear the evidence was not considered because it was deemed to be hearsay, not due to its belated disclosure. Section 90.803(6), Florida Statutes (2009), contains a hearsay exception for certain business records....
...claration. Id. The formalities with respect to submission of such evidence are somewhat relaxed in the context of administrative proceedings, but are not eliminated entirely. Id. Here, the employer made no effort to satisfy the requirements *1020 of section 90.803(6)....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2007 WL 2428414
...___,
126 S.Ct. 2266,
165 L.Ed.2d 224 (2006). The defendant also objected that, owing to an evident delay in the neighbor's placing of the 911 call, the tape did not qualify as a spontaneous statement or excited utterance under the Evidence Code. See §
90.803(1),(2), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2006 WL 2356037
...es. The trial court did not abuse its discretion by finding three of the child victim's hearsay statements to be admissible. A child victim's hearsay statements are admissible at trial for child sexual abuse if the child testifies or is unavailable. § 90.803(23), Fla....
...tten order explaining its findings as to each of the Townsend criteria. The trial court's findings are supported by the record and satisfy the statute. Therefore, the trial court did not abuse its discretion by admitting these statements pursuant to section 90.803(23)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 11741, 2010 WL 3154832
...The trial court overruled the objection. The "excited utterance" exception to the hearsay rule allows the admission of a hearsay statement "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." § 90.803(2), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1997 WL 203657
...The law in this state is that prior unsworn, inconsistent, and uncorroborated statements cannot constitute the only substantive evidence to sustain a conviction "regardless of whether the prior inconsistent statement is admitted under section
90.801(2)(a) or section
90.803(23)," Florida Statutes....
...State,
560 So.2d 1304 (Fla. 1st DCA 1990); Jaggers v. State,
536 So.2d 321, 325 (Fla. 2d DCA 1988). Our review of the record reveals that the child victim's testimony at trial in the instant case was not inconsistent with her hearsay statements admitted pursuant to section
90.803(23)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2003 WL 1913720
...Department of Highway Safety and Motor Vehicles, because the state failed to establish the necessary predicate for admission of the document as a business record. We agree and reverse and remand for new trial. The business records hearsay exception, section 90.803(6)(a), Florida Statutes (2001), provides that the following are not inadmissible as evidence: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time...
...h memorandum, report, record, or data compilation, all as shown by the testimony of *342 the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness. In order to be admissible under section 90.803(6)(a), the business record must be shown to have been: (1) made at or near the time of the event recorded, (2) by or from information transmitted by a person with knowledge, (3) kept in the course of a regularly conducted business activity, and (4) the regular practice of that business to make such a record....
...Thus, I concur on the second issue. BOOTH, J., Dissents. I would affirm the trial court's decision to admit the order of license revocation issued by the Department of Highway Safety and Motor Vehicles. In determining whether the hearsay exception of section
90.803(6)(a) applies, the trial court must make a preliminary factual determination of the admissibility of evidence pursuant *343 to section
90.105(1)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2002 WL 649062
...tment of Health (Department) revoking his license to practice psychology and imposing an administrative fine. As grounds for reversal, Dr. Grabau asserts 1) that the final order is based on a deposition erroneously admitted into evidence pursuant to section 90.803(22), Florida Statutes, as amended by chapter 98-2, section 1, Laws of Florida, which Dr....
...Grabau and the Florida Board of Regents, K.R.'s videotaped deposition (taken by counsel for Dr. Grabau) was begun, was scheduled to be continued at another date at the request of Dr. Grabau's lawyer, but was never completed because the civil lawsuit was settled. In February 1999, citing section 90.803(22), Florida Statutes, Department moved to introduce into evidence K.R.'s deposition, in lieu of her live testimony, in administrative proceedings....
...the administrative law judge (ALJ) granted the motion to use K.R.'s deposition. Dr. Grabau's appointed qualified representative complained that the deposition was incomplete, that Dr. Grabau never had the opportunity to cross-examine K.R., and that section 90.803(22) as amended was inapplicable because it became effective after the disciplinary proceedings began. The representative advised the ALJ that Dr. Grabau had tried unsuccessfully to locate K.R. and to take her deposition in the administrative disciplinary proceeding. The ALJ ruled, first, that section 90.803(22) applied as the procedural rule in effect at the time of the hearing....
...ally unconstitutional infringement on right of privacy). The Board ordered and adjudged the revocation of Dr. Grabau's license to practice psychology and imposed an administrative fine of $1,000.00 for each of the three established offenses. WHETHER SECTION 90.803(22), AS AMENDED, IS CONSTITUTIONAL It is clear from the ALJ's recommended order that the findings of fact and conclusions of law are based, in significant part, on the deposition testimony of K.R....
...The previous version of this statute stated that the following was not inadmissible as evidence, even though the declarant was available as a witness: (22) FORMER TESTIMONY.Former testimony given by the declarant at a civil trial, when used in a retrial of said trial involving identical parties and the same facts. § 90.803(22), Fla....
...The Committee recommended against the adoption of chapter 98-2, section 1, and the Board of Governors unanimously approved this recommendation. Id. at 339-40. In effect, chapter 98-2, section 1, replaced the narrow hearsay exception for "former testimony" in section
90.803, Florida Statutes, which applies irrespective of a declarant's availability to testify, with the significantly broader "former testimony" exception in section
90.804(2)(a), Florida Statutes, which applies only when the declarant is *708 unavailable....
...at the hearing and to cross-examine her, in that K.R.'s deposition is incomplete and was taken to discover matters that were relevant to the federal civil lawsuit wherein he and the Florida Board of Regents were defendants. Over an objection, the ALJ allowed the introduction of K.R.'s deposition into evidence based on section 90.803(22), Florida Statutes, which the ALJ deemed procedural; and on the finding that Dr....
...The discovery of certain critical matters was not obtained during the incomplete deposition, and the federal lawsuit was settled before the deposition could be rescheduled and completed as originally planned. We have carefully considered the numerous grave concerns about the constitutionality of section 90.803(22), Florida Statutes, as amended, as set forth by the opponents of the provision and acknowledged by the Florida Supreme Court....
...Therefore, the statutory provision is not a proper basis for the admission into evidence of K.R.'s deposition in the administrative proceeding below. We certify the following to the Florida Supreme Court as a question of great public importance: IS SECTION
90.803(22), FLORIDA STATUTES, AS AMENDED IN CHAPTER 98-2, SECTION 1, UNCONSTITUTIONAL AS A VIOLATION OF ARTICLE V, § (2)(a), AND ARTICLE II, § 3, FLORIDA CONSTITUTION? *710 WHETHER SECTION
90.804(2)(a) APPLIES As an alternative ground, Depa...
...To the extent pertinent to the instant issues, these limited circumstances generally can be grouped under the heading "witness unavailability." Fla. R. Civ. P. 1.330(a)(3). Given the success of its request to admit K.R.'s deposition into evidence based on section 90.803(22), Florida Statutes, Department did not seek to introduce the deposition based on the alternative ground of rule 1.330(a)(3)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 5279, 2010 WL 1560055
...red Janaina with premeditation, destroyed his credibility, and contradicted his only defense that the shooting was a tragic accident. The defendant also contends the state compounded the error during closing arguments by referring to the statements. Section 90.803(2), Florida Statutes (2008), provides that "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is not inadmissible....
...finding by a trial court, which is reviewed under the abuse of discretion standard." Vanevery v. State,
980 So.2d 1105, 1107 (Fla. 4th DCA 2008). "In order for a statement to qualify as an excited utterance exception to the hearsay rule pursuant to section
90.803(2) ......
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2003 WL 1872312
...guilty of that, but the grand theft, no, no, no. (emphasis added). No agreement came about and Davis proceeded to trial. The State subsequently filed a pretrial motion requesting the court to find Davis's statement admissible, as an admission under section 90.803(18), Florida Statutes....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1983 Fla. App. LEXIS 21802
within one of the exceptions enumerated under section
90.803, Florida Statutes, it was therefore inadmissible
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 14634, 2011 WL 4104736
...rm of the claimant's admissions to the service manager. The service manager testified directly concerning the claimant's admissions. The claimant's statements to the service manager were admissible as an exception to the hearsay exclusion rule under section 90.803(18), Florida Statutes (2010), which provides that a statement offered against a party is admissible when it is "[t]he party's own statement in either an individual or a representative capacity." See also Addison v....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2004 WL 1933545
...The defendant maintains that the hearsay rule bars evidence of the contents of the decedent's will. That is not so. There is a specific hearsay exemption for statements which relate "to the execution, revocation, identification, or terms of the declarants will." 90.803(3)(b), Fla. Stat. (2003). According to Professor Ehrhardt: Section 90.803(3)(b)1 recognizes that a statement of memory or belief is admissible when it relates to the execution, revocation, identification, or terms of the declarant's will....
...ion of a will are admissible regardless of whether they are made prior or subsequent to the execution or revocation. Since the declarant is dead there is a much greater necessity for the admissibility of this evidence than is generally present under section 90.803(3)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2003 WL 22459116
...Raymond Baugh appeals from his conviction for capital sexual battery upon the seven-year-old daughter of his former girlfriend, for which he received a sentence of life in prison. The substantive evidence against him at trial consisted almost exclusively of pretrial unsworn child hearsay statements admitted pursuant to section 90.803(23), Florida Statutes (2000), which directly conflicted with the victim's in-court testimony....
...ate and Kristin had damaged credibility. Finally, C.P.'s exclamation to her motherthat her daddy had made her suck his dickwas characterized by the prosecution as a spontaneous statement, which enshrouded it with greater evidentiary value than a section 90.803(23) child victim hearsay statement made under other circumstances....
...he door was opened, how long it took for the door to be unlocked, and how C.P. was punished for initially lying once she decided to tell the truth. All of the evidence the State presented was intended to corroborate the statements introduced through section 90.803(23). At the outset, we note that the trial court did an exemplary job in its conduct of the pretrial hearing to determine whether the "time, content, and circumstances of the statement provide[d] sufficient safeguards of reliability." § 90.803(23)(a)(1)....
...The court entered a detailed order finding that the statements C.P. made to the detective, the child protection worker, and to Kristin evidenced a sufficient degree of trustworthiness and reliability and, based upon the child testifying at trial, were admissible as a hearsay exception under section 90.803(23)....
...is lying, effectively stamping judicial approval upon accusations made in a setting where the defendant had no opportunity to cross-examine his accuser. In this case, however, we find that the trial judge appropriately applied the factors set out in section 90.803(23)(a)(1): "the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, and any other factor deemed appropriat...
...a spontaneous statement. That spontaneous statement in and of itself allows this case to get to a jury." The prosecutor implied that, because of the child's recantation, he considered the child "unavailable as a witness" as that term is described in section 90.803(23)(a)(2)(b)....
...the abuse or offense." Id. Under the prosecutor's view of the evidence, C.P.'s exclamation to her mother, occurring shortly after the mother found C.P. and the defendant together behind a locked doorthat "Ray made me suck his dick"came in under section 90.803(1) as a spontaneous statement hearsay exception. Thus, there was "other corroborative evidence ... of the offense," § 90.803(23)(2)(b), so that even if the recantation rendered C.P....
...As we mentioned earlier, our court has warned against the danger to the fact-finding process when a child victim's out-of-court statement is admitted in the face of directly contradictory in-court testimony. The trial judge's decision to admit the testimony through the machinery of section
90.803(23) "seems to place the trial judge in the position of determining the credibility of witnesses." Jaggers,
536 So.2d at 325....
...is sufficient in and of itself to sustain a conviction. The court concluded that it was not. The statements in Green were not prior inconsistent statements made under oath for purposes of section
90.801(2)(a), but they could have been admitted under section
90.803(23). The Green court specifically held that it would *764 not matter whether the statement was admitted under either hearsay exception, quoting with approval the following language from Jaggers,
536 So.2d at 325: "[W]e do not find the intent of section
90.803(23) is to allow the state to breathe substantive reliability into ......
...erred in its pretrial decision to admit C.P.'s out-of-court statements into evidence, but C.P.'s inconsistent statements should not be considered any more reliable than any other inconsistent statements simply because they were admitted pursuant to section 90.803(23)....
...m witnesses whose testimony is introduced by the state at trial...." Green,
667 So.2d at 760 (quoting Jaggers,
536 So.2d at 325). The Green court concluded that "in a criminal prosecution, a prior inconsistent statement [whether admitted pursuant to section
90.803(23) or
90.801(2)(a)] standing alone is insufficient as a matter of law to prove guilt beyond a reasonable doubt." Green,
667 So.2d at 760 (relying upon and reaffirming State v....
...under the child victim hearsay exception be consistent with the child's in-court testimony. The court approved the admission of the inconsistent statements as substantive evidence *765 once they satisfied the strict reliability safeguards set out in section 90.803(23) and refined in such cases as State v....
...es, to support a conviction. The rationale for these decisions is not clear. If the rationale is that the out-of-court statement is lacking the necessary reliability as a result of the circumstances in which it was made, the analysis is appropriate. Section 90.803(23) and the defendant's confrontation rights require this analysis....
...of the witness, the reasoning should not be followed. Although a prior statement which is admitted pursuant to section
90.801(2) is not sufficient by itself to support a conviction, the rationale should not be extended to statements admitted under a section
90.803 hearsay exception....
...dgment of acquittal should have been granted."); Williams v. State,
560 So.2d 1304, 1306 (Fla. 1st DCA 1990) ("The rule that prior inconsistent statements may not be used substantively as the sole evidence to convict, see Moore, applies to [s]ection
90.803(23) evidence as well.") (quoting Jaggers,
536 So.2d at 324)....
...Mr. Baugh's guilt. Labeling C.P.'s out-of-court statement as a spontaneous statement really is not helpful to the State, because, in spite of the court's jury instruction to the contrary, the statement did come in as substantive evidence pursuant to section 90.803(23); putting another name on it would not have made it any more corroborative of the event, especially considering that the jury knew that C.P.'s initial accusation occurred very close in time to the alleged crime....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 16549, 2010 WL 4257588
...nd theft of over $100,000. We have carefully considered each issue raised on appeal, and find no error. With respect to Gusmao's hearsay arguments, the challenged documents were properly *94 admitted under the hearsay exception for business records, section 90.803(6), Florida Statutes (2008), and the other challenged statements as admissions by a party opponent. § 90.803(18)(a), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1993 WL 382991
...ss (Dr. Kesler) to testify that the child victim told him Escoto sexually battered her on numerous occasions while she was being "baby-sat" by Escoto's wife. The state made no effort to have the victim's statements to Dr. Kesler admitted pursuant to section 90.803(23)....
...Clearly Dr. Kesler's repetition of the child's out-of-court statements was hearsay. [3] The state asserts that Dr. Kesler's testimony can be admitted under another hearsay exception, as a statement made for the purpose of medical diagnosis or treatment. § 90.803(4), Fla....
...1993), the court held that statements of a child victim identifying the perpetrator of sexual battery, made to a physician, are not pertinent to diagnosis or treatment and they can only be admitted pursuant to the safeguards and procedures outlined in section 90.803(23)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2016 Fla. App. LEXIS 16645
source, making them admissible pursuant to section
90.803(23), Florida Statutes, is reviewed for an abuse
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2005 WL 2990951
...The court sentenced appellant to fifteen years on each count to run concurrent. This appeal followed. Appellant first argues on appeal that the trial court erred in permitting the physician's testimony under the medical diagnosis hearsay exception. We disagree. Section 90.803(4), Fla....
...This court has found such statements to be admissible. Brown v. State,
611 So.2d 540, 543 (Fla. 3d DCA 1992); Pagan v. State,
599 So.2d 744, 745 (Fla. 3d DCA 1992); State v. Ochoa,
576 So.2d 854, 856 (Fla. 3d DCA 1991). In this case, the physician's testimony was admissible under
90.803(4) because there was the requisite showing "(a) that the statements were made of the purposes of diagnosis or treatment, and (b) that the individual making the statements knew the statements were being made for this purpose." Ochoa,
576 So.2d at 856 (quoting Begley v....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1998 WL 827753
...We also find that had the issue been properly preserved, we would be required to reverse due to the improper admission of the prior hearsay statement by the victim without any factual findings which would support that the "circumstances of the statement provides sufficient safeguards of reliability...." See §§ 90.803(23)(b) and (c), Fla.Stat....
...She testified as to her qualifications and that she was a counselor specializing in sexual abuse who had seen R.F. at the request of state authorities. She testified that during her fourth session with R.F., he said that the appellant "stuck his privates into his butt." Section 90.803(23), Florida Statutes (1997), provides for a hearsay exception to allow *863 trustworthy and reliable statements from a child sexual abuse victim to be admitted in court. Section 90.803(23)(a) 1, Florida Statutes (1997), provides for such testimony to be admissible if [t]he court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provides sufficient safeguards of reliability.... Section 90.803(23)(c), Florida Statutes (1997), requires as follows: The court shall make specific findings of fact, on the record as to the basis for its ruling under this subsection....
...I will not allow her to testify to anything except what her interview with the child revealed, what the child said happened. The court's singular finding, that Ms. Yardley qualified as an expert, does not satisfy the statutory requirement of sections
90.803(23)(a) and (c), Florida Statutes (1997), that the court make a determination of the reliability of the hearsay statement and make specific findings. See State v. Townsend,
635 So.2d 949, 957-958 (Fla.1994); Moore v. State,
658 So.2d 600, 601 (Fla. 1st DCA 1995) (holding that trial court erred by failing to make case specific findings to justify admission of hearsay statement under §
90.803(23))....
...The expertise of the counselor must be tied to factors which lead to reliability (for example, the method of questioning the victim or the timing of the statement). Upon remand, if the state seeks to introduce this evidence, the court should make the required findings, in accordance with section 90.803(23), Florida Statutes (1997)....
CopyCited 1 times | Published | District Court, M.D. Florida | 1993 U.S. Dist. LEXIS 17068, 1993 WL 498865
...As members of this class, and consistent with the Doody opinion, the four affiants mentioned above are not barred from acting as witnesses concerning any transactions or communications to which they were a party involving the deceased Mr. Johnson. Section 90.803(6), Fla.Stat., also provides a business record exception to evidence admitted against a deceased person....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1994 WL 630621
...Rhodes's letter was competent evidence establishing claimant's failure to attain MMI. First, the letter was inadmissible hearsay, Butch's Concrete v. Henderson,
414 So.2d 652 (Fla. 1st DCA 1982), with no predicate laid for admission under any exception. §
90.803, Fla....
CopyCited 1 times | Published | Supreme Court of Florida
...desire to shoot the police officer who approached Gilliam’s vehicle during the first
failed attempt to murder the victims; (6) denied several objections to comments
made by the prosecutor during closing statements; (7) refused to instruct the jury
on section 90.803(18)(e), Florida Statutes (1996);2 (8) denied Brooks’ motion for
mistrial; (9) denied Brooks’ motion to change venue; (10) found that Brooks
committed the murder during the course of an act of aggravated child abuse and
relied upon this fact to justify the imposition of the death sentence; (11) found the
pecuniary gain and CCP aggravating circumstances applied to the murder of
2. Section 90.803(18)(e), Florida Statutes (1996), provides that an
admission is a statement that is offered against a party and is: “[a] statement by a
person who was a coconspirator of the party during the course, and in furtherance,
of the conspiracy....
...eous admission of testimony concerning the
child support records; (2) the erroneous admission of the notes recovered from
Davis’s leg cast; (3) the improper impeachment of Thomas; (4) the trial court’s
failure to read the jury instruction for section 90.803(18)(e) as requested by
defense counsel; and (5) the erroneous reliance by the trial court on the aggravating
factor that the murders were committed during the course of an act of aggravated
child abuse....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2017 Fla. App. LEXIS 6176
to the rule against hearsay is codified in section
90.803(6), Florida Statutes (2015). It includes any
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1989 WL 55309
...In re Forfeiture of 1983 Wellcraft Scarab,
487 So.2d 306 (Fla. 4th DCA), cause dismissed,
494 So.2d 1150 (1986). He was also entitled to rely upon circumstantial evidence and upon Mr. Goodwin's admission that the boxes contained marijuana. Lobo v. Metro-Dade Police Dep't,
505 So.2d 621 (Fla. 3d DCA 1987); §
90.803(18)(a), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1989 WL 52815
...t erred in allowing hearsay statements into evidence. We reverse and remand for a new trial. Childress contends that the trial court erred in allowing the hearsay statements of a three-year-old alleged victim of child abuse into evidence pursuant to § 90.803(23), Fla. Stat. He first argues that § 90.803(23) applies only to sexual child abuse, not non-sexual abuse cases. Second, he argues that if § 90.803(23) did apply, the state failed to comply with the ten-day notice requirement of the law....
...ndant's objection on this ground. Cook v. State,
531 So.2d 1369 (Fla. 1st DCA 1988); Salter v. State,
500 So.2d 184 (Fla. 1st DCA 1986). But this is not what concerns us on appeal. More importantly, we note that the trial court erred in holding that §
90.803(23) applies to non-sexual child abuse cases....
...To determine legislative intent, the court must consider the evil to be corrected, the language of the act, including its title, and the history of its enactment. State v. Webb,
398 So.2d 820, 824 (Fla. 1981). The title is a direct statement of legislative intent. Id. at 825. Section
90.803(23) is entitled, "Hearsay exception; statement of child victim of sexual abuse or sexual offense against a child....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...1-1. On the
stand, Taylor described who and what he saw the night in question, and stated that
he had been accompanied at the time by a Mr. Thompson.
The trial court admitted the recording under the excited utterance hearsay
exception, see section 90.803(2), Florida Statutes—a ruling Hunter does not
challenge in whole....
...1st DCA 2014) (citing
Gregory v. State,
118 So. 3d 770, 780 (Fla. 2013)). Under the Florida Evidence
Code, “[h]earsay within hearsay is not excluded under s.
90.802, provided each
part of the combined statements conforms with an exception to the hearsay rule as
provided in s.
90.803 or s....
CopyCited 1 times | Published | Supreme Court of Florida
801(2)(a), Fla. Stat.) or statements by a defendant ( §
90.803(18), Fla. Stat.). This instruction was
CopyCited 1 times | Florida 2nd District Court of Appeal
...r that will follow." That did
not occur, however. And as argued by the father on appeal, the trial
court erred by failing to make specific factual findings in support of its
determination that the child hearsay statements were admissible
pursuant to section 90.803(23), Florida Statutes (2024)....
...Where, as here, the child declarant is unable to testify, a court
may admit the child's hearsay statements if it determines that they are
reliable and from a trustworthy source and if other evidence is presented
to corroborate the statements. See State v. Townsend,
635 So. 2d 949,
957 (Fla. 1994); see also §
90.803(23), Fla. Stat. (2024).
In the context of section
90.803(23), corroborative evidence "means
evidence other than the alleged child victim's out-of-court statements
which tends to confirm that the charged offense occurred." Jones v.
State, 728 So....
...2d at 1160 ("Here, the only evidence being used to support N.M.'s
hearsay statements is other hearsay statements made by the same child
to the same therapist who testified as to the original declarations. The
child declarant's hearsay statements cannot be 'other' corroborating
evidence within the meaning of section 90.803(23)(a)2.b.").
Because no evidence was presented to corroborate the child's
hearsay statements, the trial court erred in finding those statements
admissible....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2007 WL 911795
...he inmate is jailed or released, as the case may be, and that the records of inmates' release dates are kept in the ordinary course of DOC's business." Id. The court also noted that a DOC report may also be an official public record admissible under section 90.803(8), Florida Statutes. Id. at 1117 n. 2. Section 90.803(8), Florida Statutes (2003), provides in part: Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed...
...by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. § 90.803(8), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1998 WL 135265
...Albertine, Jr., Assistant Public Defender, Clearwater, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee. FRANK, Judge. The central issue in this matter derives from the trial court's refusal to declare section 90.803(24), Florida Statutes (1995), commonly known as the Elderly Person or Disabled Adult hearsay exception, unconstitutional....
...He was charged with armed burglary of a dwelling, armed robbery, and armed kidnapping. Mr. Ford died before Conner's trial. At least ten days prior to trial, the State provided Conner with a notice of its intention to use Mr. Ford's statements at trial in accordance with section 90.803(24)....
...and untrustworthy as witnesses and, hence, incompetent to testify. Thus, Conner contends that allowing the admission of the hearsay statements violates his right to confrontation and forecloses witnesses who might offer opposing evidence. Subjecting section 90.803(24) to the same analysis as the child victim hearsay exception of section 90.803(23), which it closely tracks, *172 reveals that it, too, will pass the test of constitutionality....
...Townsend,
635 So.2d 949 (Fla.1994), that the reliability safeguards in the statute essentially assure its constitutionality. The Townsend court repeated its holding in Perez v. State,
536 So.2d 206 (Fla.1988), that the "specific reliability requirements in section
90.803(23) provided sufficient safeguards of reliability to meet the `particularized guarantees of trustworthiness' standard set forth in Roberts....
...nates from a trustworthy source, the trial court must then find that other evidence corroborates the statement. If either element is missing, the statement is not admissible. Once the foregoing conditions are satisfied, the "procedural requisites of section
90.803(23) are sufficient to meet the constitutional concerns of the federal and Florida Constitutions." Townsend,
635 So.2d at 957....
...rial court held that the State would be required to demonstrate that the "time, content, and circumstances" of the statements insured their reliability before the hearsay could be admitted. In sum, Conner has not pointed to any grave deficiencies in section 90.803(24) or its application that would cause this court to be concerned with constitutional questions; we affirm that aspect of the case....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2008 Fla. App. LEXIS 3868
subsequent act of swinging the bat at D.M.L. See §
90.803(3) (providing that a hearsay exception exists
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2001 WL 246036
...victim and his girlfriend, where neither of them testified at trial. The trial court determined, and we agree, that the victim's out-of-court statements to the police were properly admitted under the excited utterance exception to hearsay rule. See section 90.803(2), Florida Statutes (1997)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2006 WL 1559722
...ar the time of the event recorded; (2) by or from information transmitted by a person with knowledge; (3) kept in the course of a regularly conducted business activity; and (4) that it was the regular practice of that business to make such a record. § 90.803(6)(a); Brooks v....
...State,
918 So.2d 181, 193 (Fla.2005). Either the affidavit of the technician who actually performed the tests or the affidavit of the custodian of the blood test report is required to establish a foundation for admission of the report as a hearsay exception under section
90.803(6), Florida Statutes (2000)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1991 WL 95628
...). At the trial in October 1987, the state played the videotape to the jury and the child did not otherwise testify. The defendant was convicted of the charges based primarily on the videotaped testimony and hearsay statements introduced pursuant to section 90.803(23), Florida Statutes (1985)....
...1012, *925
108 S.Ct. 2798,
101 L.Ed.2d 857 (1988); Leggett. The findings are not required merely to satisfy an evidentiary rule. Compare Stone v. State,
547 So.2d 657 (Fla. 2d DCA 1989) (the omission of the findings required to introduce hearsay testimony under section
90.803(23)(c), Florida Statutes (1987) (is not fundamental error, at least in a case in which the child testified at trial)) with Sanders v....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2004 WL 1223674
...5th DCA 1999), which we view as dispositive. Mr. Springer next contends that the trial court abused its discretion in permitting the State to play the videotaped statement of the victim to the jury after the victim had testified. The trial court admitted the videotape pursuant to section 90.803(23), Florida Statutes (2002)....
CopyCited 1 times | Published | District Court of Appeal of Florida | 10 Fla. L. Weekly 1565, 1985 Fla. App. LEXIS 14867
against hearsay set forth in the evidence code. Section
90.803(18)(a), Florida Statutes (1983), provides that
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 WL 2508845
...Dep't of Children & Families,
958 So.2d 554, 557 (Fla. 4th DCA 2007). The Mother's hearsay statements were not admissible against the Father because he did not make them and he did not manifest an adoption or belief in them or authorize the Mother to make them on his behalf. See §
90.803(18)(a)(c), Fla....
...e evidence at trial did not reflect that R.K.'s prior statements were sworn or otherwise met the requirements of section
90.801(2)(a). And the requirements for the admission of R.K.'s statements as the out-of-court statements of a child victim under section
90.803(23) were not met....
...See L.R. v. Dep't of Children & Family Servs.,
947 So.2d 1240, 1244 (Fla. 2d DCA 2007) (citing §
90.801(2) and Smith v. State,
880 So.2d 730, 735 (Fla. 2d DCA 2004)). C.K. did not testify at trial, and the Department did not satisfy the requirements of section
90.803(23) for the admission of C.K.'s statements as the out-of-court statements of a child victim....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 9599
statements under the child-victim hearsay exception. §
90.803(23), Fla. Stat. (2016). ■ A prerequisite to the
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1992 WL 86168
...noted below and the facts of the case, it is necessary to reverse the conviction and remand for a new trial. HEARSAY TESTIMONY The state argues that the victim's identification of the defendant while being examined by a physician is admissible under section 90.803(4), Florida Statutes, since it was a statement that the victim made for purposes of medical diagnosis or treatment of gonorrhea....
...We grant the request as to Flanagan but deny it as to Conley. GOSHORN, C.J., and DIAMANTIS, J., concur. NOTES [1] We do not consider nor do we express an opinion on whether the testimony of the physicians was admissible under the hearsay exception for child victims of abuse, subsection
90.803(23), see, e.g., Pardo v. State,
596 So.2d 665 (Fla. March 26, 1992), since there was neither an attempt by the state to introduce the hearsay through this exception nor a hearing pursuant to subsection
90.803(23)(b) to assess the reliability of the hearsay....
CopyCited 1 times | Published | Florida 5th District Court of Appeal
child hearsay statements at trial pursuant to section
90.803(23), Florida Statutes (2017). That statute
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 8761, 2015 WL 3609508
...terus regularly maintained such
records in the course of its regularly conducted business.
Sas objected to the custodian's testimony and argued that Fannie Mae
failed to lay the predicate for admission of Sas's payment history under section
90.803(6), Florida Statutes (2014), because the custodian had no personal knowledge
of Chase's record-keeping practices....
...See Thompson v.
Fla. Cemeteries, Inc.,
866 So. 2d 767, 769 (Fla. 2d DCA 2004).
-3-
directly on point. In WAMCO, this court held that the loan payment histories of a prior
servicer are admissible under section
90.803(6) when they are relied on by a successor
servicer who establishes that it independently verified the accuracy of the payment
histories and its verification procedures demonstrate that the records are trustworthy.
903 So....
...histories received from the prior servicer or to detail the procedures used for such
verification. See Holt,
155 So. 3d at 504; Burdeshaw,
148 So. 3d at 826; Hunter,
137
So. 3d at 573. Here, Seterus's records custodian's testimony satisfied the requirements
of section
90.803(6) and also established that Seterus independently verified the
accuracy of the records it received from Chase using Seterus's verification procedures.
As such, the loan payment history was admissible under the business records exception
to the hearsay rule....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
testimony regarding the sexual abuse pursuant to section
90.803(23), Florida Statutes (2009). Following a hearing
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 11089, 2010 WL 2976708
...In the wake of those allegations, the court ordered that the Father have only supervised visitation with the child. The Father later moved for unsupervised visitation, and the Mother moved to admit the child's hearsay testimony regarding the sexual abuse pursuant to section 90.803(23), Florida Statutes (2009)....
...h precludes any of the alleged out of court statements being presented at any further hearings." The court went on to specify that there was no corroborating medical evidence of the sexual abuse. This is not the standard for admitting evidence under section 90.803(23)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 11408, 2015 WL 4549489
...t did not abuse
its discretion in admitting it. An excited utterance is “[a] statement or
excited utterance relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or
condition.” § 90.803(2), Fla....
...ins” and the second man identified
himself as “Linwood Lewis.” Appellant argues that this self-identification
was inadmissible. The court did not abuse its discretion, as the
statements by co-conspirators could be considered an admission under
section 90.803(18)(e), Florida Statutes (2013)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2006 WL 1999223
...t; (2) the statement must have been made while under the stress of excitement caused by the event; and (3) the statement must have been made before the declarant had time to contrive or misrepresent. Evans v. State,
838 So.2d 1090, 1093 (Fla. 2002); §
90.803(2), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 214, 2016 WL 64341
...relating to a startling event
or condition made while the declarant [is] under the stress of excitement
caused by the event or condition,’ is a hearsay exception.” Thomas v. State,
125 So. 3d 928, 929 (Fla. 4th DCA 2013) (alterations and omission in
original) (quoting §
90.803(2), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 557, 2009 WL 185994
...A child protection team videotaped interviews with the victims, M.J. and L.J., in which they said that the defendant had molested them. The defendant sought to exclude all of these statements on the ground that they were unreliable and therefore did not qualify for admission as child hearsay under section 90.803(23), Florida Statutes (2004)....
...s pertaining to the defendant's son, M.J. The court reasoned that M.J. had testified at trial that he did not know if he was telling the truth, so his testimony was not actually a recantation of the statements that had been related to the jury under section 90.803(23)....
...either of the alleged crimes against the defendant's son, M.J., and that the defendant is therefore entitled to a judgment of acquittal on those two charges. The hearsay statement of a child alleging sexual abuse may be admissible in evidence under section 90.803(23), but the statement alone is not sufficient to sustain a conviction for a crime....
...Moore,
485 So.2d 1279 (Fla.1986). The state must still prove the elements of the crime through the testimony of the child at trial or by other substantive evidence. If the only evidence of guilt is a child victim's out-of-court statement admitted under section
90.803(23), and if the child has recanted the accusation in court, the trial court must grant a motion for judgment of acquittal....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 1588, 2015 WL 486674
...Andreaus denied making—were inadmissible hearsay. See
Visconti v. Hollywood Rental Serv.,
580 So. 2d 197, 198 (Fla. 4th DCA 1991)
("[S]tatements which relate to cause of the fall are not statements made for the purpose
of medical diagnosis or treatment and are, therefore, not admissible under section
90.803(4)[, Florida Statutes (1990)].")....
CopyCited 1 times | Published | District Court of Appeal of Florida
out-of-court statements were admitted under section
90.803(23), Florida Statutes (2018), which creates
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 19540, 2011 WL 6057923
...The stub is not a part of the check, but a note reflecting that a check was issued; it is not the negotiable instrument. Generally, cases have treated check stubs as inadmissible hearsay unless they are qualified under an exception to the hearsay rule. See § 90.803(6), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2001 WL 1576416
...testified but became emotionally upset and could not continue. Dr. Sherrie Bourg-Carter, a licensed clinical and forensic psychologist, then testified regarding S.M.'s competency to testify. In a later hearing, Dr. Bourg-Carter also opined as to S.M.'s unavailability to testify in accordance with section 90.803(23), Florida Statutes (1999)....
...tenced him on all counts. This timely appeal followed. We find merit in appellant's first argument, that the trial court abused its discretion in permitting Dr. Bourg-Carter to explain why the child-victim was unavailable to testify before the jury. Section 90.803(23) provides a hearsay exception for admitting a child-victim's out-of-court statement where, in a proceeding outside the presence of the jury, the court determines that the statement provides sufficient safeguards of reliability and the child either testifies or is unavailable as a witness. "Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm ...." § 90.803(23)(a)(2)(b), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...The requirement of independent evidence is a condition of admissibility. Boyd v. State,
389 So.2d 642, 644 (Fla. 2d DCA 1980). Accord Briklod v. State,
365 So.2d 1023 (Fla. 1978); Tresvant v. State,
396 So.2d 733 (Fla. 3d DCA 1981). This principle was adopted in the Florida Evidence Code at §
90.803(18), Florida Statutes (1979)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2008 WL 2986441
...During the victim's testimony, the State introduced, over defense objection, a computer printout of the victim's credit card statement, listing purchases made with the credit card on the date it was stolen, under the business record exception to the hearsay rule. § 90.803(6)(a), Fla....
...d in the statement was generated by a person with knowledge, that the information contained in the statement was kept in the course of the bank's regular business activity, and that it was the regular practice of the bank to prepare such statements. § 90.803(6)(a); Brooks v....
...Therefore, unlike the instant case, the improperly admitted bank record in Medlock was critical to an element of the required proof, and was relied on by the State as the primary, if not the sole evidence of the theft. Affirmed. NOTES [1] Miranda v. Arizona,
384 U.S. 436,
86 S.Ct. 1602,
16 L.Ed.2d 694 (1966). [2] Section
90.803(6)(a) provides: (6) Records of regularly conducted business activity. (a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from inform...
CopyCited 1 times | Published | District Court of Appeal of Florida
circumstances show their lack of trustworthiness. §
90.803(8), Fla. Stat. (2015); see also Lee v. Dep't
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2002 WL 2007843
...Reynolds, and the case proceeded on the theories of negligence, defective design, and conspiracy to defraud. During the seven-week trial, the trial court admitted into evidence, at the plaintiff's request, the transcripts from four depositions of witnesses taken in other tobacco litigation pursuant to section
90.803(22), Florida Statutes (2000). [1] Shortly after the verdict, the supreme court issued its opinion in In re Amendments to the Florida Evidence Code,
782 So.2d 339, 342 (Fla.2000), refusing to adopt section
90.803(22) as a rule of evidence, expressing "grave concerns" about the statute's constitutionality....
...ould be used at similar trials to prove similar claims. As such, this type of mass tort litigation presents far fewer concerns regarding due process than the cases of *856 Abreu or Grabau. If there is any constitutional application of a rule such as section 90.803(22), it may be in this context....
...Nevertheless, the Florida Supreme Court has refused to adopt the rule in its present form, and the trial judge was in the best position to evaluate any concerns over the use of these depositions and their potential impact on the trial. Affirmed. NORTHCUTT and CASANUEVA, JJ., concur. NOTES [1] Section 90.803(22) was enacted in 1998....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2003 WL 21980485
...predictive of an accident. See, e.g., Taylor v. State,
855 So.2d 1, 12,
2003 WL 21283161 (Fla. June 5, 2003); Stoll,
762 So.2d at 874-75. Indeed, we have not been directed to, nor have we discovered a case, in which a trial court was reversed under section
90.803(3), Florida Statutes, for failing to admit hearsay evidence predictive of an accident, as opposed to rebutting a claim of accident....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2006 WL 2135804
...t. We grant the petition. Pinault is charged with one count of sexual battery on a person less than twelve years of age, by a person eighteen years of age or older. The state has filed notice of its intent to offer child hearsay evidence pursuant to section 90.803(23), Florida Statutes....
...At the hearing, the state indicated that the child victim would be called to testify at trial. The trial court found indicia of trustworthiness and that the child was age eleven at the time of the statement, and initially it ruled that, if the child were to testify, the statement would be admissible pursuant to section 90.803(23)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 11738, 2010 WL 3155006
...Wenz, no evidence was introduced at trial as to the order, delivery, or receipt of goods by Clark Well. For those hearsay lists to be admissible in evidence, North-South had to establish that they were business records which were admissible as an exception to the hearsay rule under Section 90.803(6), Florida Statutes (2009)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2008 WL 941927
...on an affidavit given by the owner of the credit card as to its use without the permission of the owner. In admitting the affidavit, the court held that the affidavit qualified for admission under the business records exception to the hearsay rule. § 90.803(6), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 5118, 2015 WL 1545005
...She claims that this was
hearsay within hearsay, because Jones’s statement was relaying
information given to her, but the source of that information is unknown,
thus amounting to hearsay. We disagree, as the statement qualifies as an
admission by a party opponent.
Section 90.803(18), Florida Statutes (2012), provides an exception to
the inadmissibility of hearsay for admissions by a party:
(18) Admissions.--A statement that is offered against a
party and is:
(a) The party’s own state...
...Accord, Benjamin v. Tandem Healthcare, Inc.,
93 So.
3d 1076, 1086 (Fla. 4th DCA 2012).
Applying the statute, Jones, as personal representative of the estate,
was a party and made the statement to her sister. Thus, the statement is
treated as an admission under section
90.803(18)(a), Florida Statutes
(2012)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2008 WL 1809326
...The State filed its notice of intent to introduce the statements the victim made to his mother and to an interviewer at the Children and Special Needs Center of the State Attorney's office ("State Attorney interviewer"). The State sought to introduce the statements under section 90.803(24), Florida Statutes (2001), which provides a hearsay exception for out-of-court statements of a disabled adult under certain circumstances....
...In Hosty, the Florida Supreme Court dealt with a remarkably similar situation. Hosty was charged with sexual battery of *432 a mentally disabled person. The victim had described the assault to her teacher and a law enforcement officer, and the State sought to introduce the statements under section
90.803(24).
944 So.2d at 258-59. In both this case and Hosty, the trial courts determined that section
90.803(24) was unconstitutional....
...gueness of the accusations; (9) the possibility of any improper influence on the declarant; and (10) any contradictions in the accusation.
944 So.2d at 263. The Court concluded that the statements the victim made to her teacher were admissible under section
90.803(24)....
...The victim's statements to the mother, therefore, must be evaluated under the hearsay analysis stated in Hosty. As stated in Hosty, the State must establish a proper factual predicate, and the witness must either testify or be determined to be unavailable under the statute. § 90.803(24)(a), Fla....
...If the trial court determines that the victim is unavailable, before these statements may be admitted at trial, Brocca must have an opportunity to cross-examine the victim. Accordingly, based on Hosty, we reverse the trial court's order finding that section 90.803(24) is unconstitutional....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2004 WL 689779
...reau of Victim Compensation is specifically authorized by section
960.17(1), Florida Statutes (2003), and the documentation provided by the State to prove the amount of restitution was admissible as a self-authenticating public record under sections
90.803(8) and
90.902(1), Florida Statutes....
...by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. § 90.803(8), Florida Statutes (2003)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2003 WL 1877971
...Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General (Fort Lauderdale), for Petitioner. Richard G. Dunberg, South Miami, for Respondent. Before COPE, GERSTEN, and FLETCHER, JJ. PER CURIAM. We affirm the trial court's finding that Section 90.803(24), Florida Statutes (2001), is unconstitutional....
...State,
748 So.2d 950 (Fla.1999). In concurrence with the Fourth District Court of Appeal's recent opinion in State v. Hosty,
835 So.2d 1202 (Fla. 4th DCA 2003), we certify the following to the Florida Supreme Court as a question of great public importance: IS SECTION
90.803(24), FLORIDA STATUTES (2001), AS APPLIED TO DISABLED ADULTS, FACIALLY VIOLATIVE OF A CRIMINAL DEFENDANT'S RIGHT TO CONFRONT WITNESSES UNDER BOTH THE UNITED STATES AND FLORIDA CONSTITUTIONS? Petition for certiorari denied; question certified. GERSTEN and FLETCHER, JJ., concur. COPE, J., dissenting. First, under controlling precedent of the United States Supreme Court, the hearsay exception for disabled adults, §
90.803(24), Fla....
...was examined at the rape treatment center and subsequently interviewed by law enforcement personnel, after which the defendant was arrested. The State filed a notice of intent to rely on hearsay statements of N.R. In doing so, the State proceeded under subsection 90.803(24), Florida Statutes, which provides a hearsay exception for disabled adults....
...It is reasonably clear that the State wishes to do so, but a preliminary determination will need to be made whether N.R. is competent to testify. See Charles W. Ehrhardt, Florida Evidence §§ 601.1, 603.1 (2d ed. 2002). [2] The defense opposed the introduction of the hearsay statements. The defense argued that subsection 90.803(24) hearsay exception for disabled adults violates the Confrontation Clause of the United States Constitution....
...The trial court held the statute unconstitutional as relates to disabled adults and excluded the proffered hearsay statements. The State has petitioned for a writ of certiorari. II. The Legislature has enacted a hearsay exception for statements of disabled adults and elderly persons. § 90.803(24), Fla....
...This exception allows the admission of statements which describe "any act of abuse or neglect, any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act on the declarant elderly person or disabled adult...." Id. § 90.803(24)(a) (emphasis added). *293 In order for such hearsay statements to be admissible, the elderly person or disabled adult must either (a) testify, or (b) be unavailable as a witness. Id. § 90.803(24)(a)2.a., b. If the declarant is unavailable as a witness, there must be "corroborative evidence of the abuse or offense." Id. § 90.803(24)(a)2.b....
...The Confrontation Clause of the Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." Professor Ehrhardt has explained that the relevant case for Confrontation Clause analysis of subsection 90.803(24) is Idaho v....
...*294 If the declarant testifies, then there is no Confrontation Clause issue. Id.; Felder v. State,
767 So.2d 1267 (Fla. 3d DCA 2000). That is so because once the declarant is on the witness stand and subject to examination, the witness can be asked about his or her hearsay statements. Turning now to subsection
90.803(24), one option is that the disabled adult actually testifies at the trial. Id. §
90.803(24)(a)2.a., Fla....
...In that situation, the hearsay is admissible if the declarant's "statement ... bears adequate indicia of reliability." Id. at 815,
110 S.Ct. 3139 (citations and internal quotation marks omitted). If the hearsay exception is not firmly rootedand subsection
90.803(24) is notthen there must be "a showing of particularized guarantees of trustworthiness." Id. (citations and internal quotation marks omitted). Subsection
90.803(24) satisfies the requirements of Idaho v. Wright . Under the statute the trial court must determine that "the time, content, and circumstances of the statement provide sufficient safeguards of reliability." §
90.803(24)(a)1., Fla....
...Although chronologically thirty-two, N.R. functions at the level of a seven-year-old. He lives at home, is dependent on others *295 for transportation, and is able to work only in a supervised setting. In Conner, the court expressed concern that the factors identified in subsection 90.803(24) were not tailored for determining the reliability of hearsay statements made by elderly persons....
...sentedan unavailable elderly declarantand did not reach a question not before it: the appropriate analysis where the elderly victim actually testifies at trial. V. The Legislature pursued an important policy objective in enacting subsection *296 90.803(24). As a result of Conner, however, the force of subsection 90.803(24) has been reduced or eliminated in criminal cases....
...ederal system. See 6 Weinstein's Federal Evidence, Table of State and Military Adaptions Federal Rules of Evidence, at T-159 through T-162 (Joseph M. McLaughlin, ed., 2d ed.2002). Adoption of a residual hearsay exception would effectively reenact subsection 90.803(24) in a form likely to withstand facial constitutional challenge....
...The trial court should proceed to a determination whether the victim is competent to testify, in which case the Confrontation Clause has been satisfied. If the victim is not competent to testify, then the court must proceed to analyze the reliability of the hearsay statements §
90.803(24)(a)1.; Conner,
748 So.2d at 958 (listing factors to be considered), as well as a determination that there is corroborative evidence of the sexual offenses. Id. §
90.803(24)(a)2.b....
...[3] While the State has not made this argument in its petition, it amounts to fundamental error. We cannot countenance the striking down of this part of the statute on a fundamentally flawed analysis. [4] Although no one has raised the point, N.R.'s statements might be independently admissible under subsection
90.803(23), Florida Statutes, the hearsay exception for child victims. For child hearsay purposes, subsection
90.803(23) defines a child victim as one with a "physical, mental, emotional, or developmental age of 11 or less...." Id. §
90.803(23)(a) (emphasis added). See State v. Green,
667 So.2d 756, 757-58 (Fla.1995) (applying subsection
90.803(23) to mental age of seven); Mathis v....
...3d DCA 1999), but the case did not involve any issue of mental or developmental age under eleven. In the present case, N.R. has a mental age of seven. The charged crimes appear to fit the description of "any offense involving an unlawful sexual act ... on the declarant child...." § 90.803(23)(a), Fla....
CopyCited 1 times | Published | District Court of Appeal of Florida
any out-of-court statement from her under section
90.803(23), Florida Statutes (2017), as an alleged
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 2177, 1987 Fla. App. LEXIS 10149
as an exception to the hearsay rule under section 90.-803(4), Florida Statutes (1985), which permits
CopyPublished | Florida 3rd District Court of Appeal
admissibility of child hearsay statements pursuant to section
90.803(23), Florida Statutes); Osagie v. State, 58
CopyPublished | District Court of Appeal of Florida
Regularly Conducted Business Activity pursuant to section
90.803(6)(c), Florida Statutes (2021), indicating
CopyPublished | District Court of Appeal of Florida
statement of intent or plan is admissible under section
90.803(3), Florida Statutes, when offered to “[p]rove
CopyPublished | District Court of Appeal of Florida
the death threat, even if an admission under section
90.803(18) of the Florida Statutes, was predicated
CopyPublished | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 14004, 2010 WL 3655543
...e victim. Detective Adams was the only witness for the State, and she did not have the requisite knowledge to establish the proper foundation for the admission of the financial statements under the business records exception to the hearsay rule. See §
90.803(6)(a), Fla. Stat. (2008); Medlock v. State,
537 So.2d 1030, 1031 (Fla. 2d DCA 1988) ("[Section
90.803(6)(a)] clearly require[s] the records custodian or other qualified person employed by the bank to testify regarding the necessary predicate before the bank statement could be admitted into evidence....
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 14944, 2011 WL 4374298
...The trial court admitted the mother's statement as an excited utterance over the defendant's objection. The defendant argues the admission of this statement was error. We disagree. "In order for a statement to qualify as an excited utterance exception to the hearsay rule pursuant to section 90.803(2)......
CopyPublished | District Court of Appeal of Florida
admit business records over a hearsay objection, §
90.803(6)(a), Fla. Stat. As the Florida Supreme Court
CopyPublished | Florida 3rd District Court of Appeal
...generally be demonstrated in the conventional manner—the buyer/victim could
testify what he paid for the shirt, for example, and testify that the shirt was new
and had never been worn. But the price tag itself would remain hearsay and
(absent a predicate under section 90.803(6), Florida Statutes – the business records
exception – or meeting some other hearsay exception) would not be admissible.
This distinction between the definition of value for retail theft and value for
non-retail theft cases guides our conclusion that the testimony in this case was not
hearsay....
CopyPublished | District Court of Appeal of Florida
to admit child- hearsay evidence pursuant to section
90.803(23), Florida Statutes. At a pretrial hearing
CopyPublished | Florida 1st District Court of Appeal
the victim’s actions before the shooting. See §
90.803(3)(a)2., Fla. Stat. (2022). And even if erroneous
CopyPublished | Florida 4th District Court of Appeal | 2008 Fla. App. LEXIS 15392
the state cites the child hearsay exception. See §
90.803(24) Fla. Stat. (2006). The state’s reliance on
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 14930, 2015 WL 5827124
...The trial court
properly rejected this challenge. The exception to hearsay for public
records applies to the returns of service here. See Cordova v. State,
675
So. 2d 632, 637 (Fla. 3d DCA 1996) (holding that a return of service was
hearsay but admissible under the public records exception in section
90.803(8), Florida Statutes).
The Bank also contends that the returns of service were admissible on
the alternative ground that they qualified under the exception to the
hearsay rule for records of regularly conducted business activity. §
90.803(6)(a), Fla....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 2379, 1987 Fla. App. LEXIS 12237
excited utterance exception to the hearsay rule. Section
90.803(2), Florida Statutes (1985) provides: (2) Excited
CopyPublished | District Court of Appeal of Florida
reliability and trustworthiness, as required by section
90.803(23)(a) and (c), Florida Statutes (2014). See
CopyPublished | District Court of Appeal of Florida
admitting the child hearsay statements under section
90.803(23), Florida Statutes (2019), and State v.
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 16010, 2015 WL 6496304
...“The standard of review for denial of a motion for involuntary dismissal
at trial is de novo.” Holt v. Calchas, LLC,
155 So. 3d 499, 503 (Fla. 4th
DCA 2015) (citation omitted).
The elements to prove that evidence is admissible under the business
records exception of section
90.803(6)(a), Florida Statutes (2013), are:
(1) the record was made at or near the time of the event; (2)
was made by or from information transmitted by a person with
knowledge; (3) was kept in the ordinary course of a regu...
...ecord.
Holt,
155 So. 3d at 503 (quoting Yisrael v. State,
993 So. 2d 952, 956 (Fla.
2008)). “[A] witness’s general testimony that a prior note holder follows a
standard record-keeping practice, without discussing details to show
compliance with section
90.803(6), is not enough to establish a foundation
for the business records exception.” Id....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 14210
testimony of a “custodian or other qualified witness.” §
90.803(6), Fla. Stat. (1997); see Jackson v. State, 738
CopyPublished | Florida 3rd District Court of Appeal
admission of a business record as required by section
90.803(6)(a), the affidavit must show that the record
CopyPublished | Florida 3rd District Court of Appeal | 11 Fla. L. Weekly 2167
...NOTES [1] We reject entirely the State's suggestion that the alleged victim's statement to the officer was within the spontaneous statement or excited utterance exceptions to the hearsay rule, as it is evident that the victim had more than ample time to reflect and deliberate on his story. See § 90.803(1), (2), Fla....
CopyPublished | Florida 1st District Court of Appeal
...the evidence to support the final judgment was adequately preserved for review.
Appellants challenge the sufficiency of the evidence because the only evidence to
support the final judgment was erroneously admitted hearsay not qualified for the
business records exception set out in section 90.803(6)(a), Florida Statutes....
...Section
90.104 does not require “magic words” to preserve a hearsay objection, so
long as the trial court is informed of the perceived error. See Corona v. State,
64
So. 3d 1232, 1242 (Fla. 2011).
It is true that defense counsel did not use the words “hearsay” or “section
90.803(6), Florida Statutes” in his objections....
...opposing counsel that the
objection was directed towards the admission of computer-generated hearsay
documents due to the plaintiff’s failure to establish any of the grounds required for
the business records exception to the hearsay rule under section 90.803(6).
Furthermore, because Ms....
...ed on the debt
was Plaintiff’s Composite Exhibit 3, a printout purportedly showing the fees,
expenses, and principal balance due on the note and mortgage. BNYM’s only
witness to authenticate this document as a business record admissible under section
90.803(6), Florida Statutes, was Ms....
...source of the data upon which his own company relied to open the file.
Accordingly, both the witness’ testimony and the affidavit containing the data for
the amount owing were inadmissible hearsay, unqualified for the business records
exception under section 90.803(6)(a)....
...relevant to the Wolkoffs’ mortgage payment history as evidence.” Id.
While this appeal is not based on a challenge to BNYM’s standing to
12
foreclose, the business records exception to the hearsay rule as set out in section
90.803(6)(a) was applied to proof of standing in Hunter v....
...succession of loan servicers. ... Asserting the records originally came
from MortgageIT, Aurora relied on the testimony of Rushmore
employee Roger Martin to lay the necessary foundation for admitting
the records into evidence under section 90.803(6)(a), Florida Statutes,
the business records exception to the hearsay rule.
Mr....
CopyPublished | Florida 1st District Court of Appeal
the victim’s out-of-court statements because section
90.803(23), Florida Statutes (2009), states that such
CopyPublished | Florida 3rd District Court of Appeal
foreclosure. The business records exception, section
90.803(6), Florida Statutes (2016), allows a party
CopyPublished | Florida 4th District Court of Appeal
...e
principles).
Payment History Hearsay Objection
Holt argues that the asset manager was not able to provide the proper
foundation to establish that the payment history was admissible under the
business records exception to the hearsay rule.
Section 90.803(6)(a), Florida Statutes (2013) provides:
(a) A memorandum, report, record, or data compilation,
in any form, of acts, events, conditions, opinion, or
diagnosis, made at or near the time by, or from...
...custodian or other qualified witness, or as shown by a
certification or declaration that complies with paragraph
(c) and s.
90.902(11), unless the sources of information or
other circumstances show lack of trustworthiness.
§
90.803(6)(a), Fla....
...satisfy the requirements to lay the proper foundation for the business
records exception.
As the First District held in Hunter, a witness’s general testimony that
a prior note holder follows a standard record-keeping practice, without
discussing details to show compliance with section
90.803(6), is not
enough to establish a foundation for the business records exception.
When the foundation for the business records exception is sought through
a subsequent note holder for documents containing electronic records of
loan payments made to a prior note holder, the foundation must
demonstrate compliance with section
90.803(6) based on personal
knowledge.
As stated within the statute itself, one way to demonstrate compliance
with section
90.803(6)(a) based on personal knowledge is the use of the
self-authentication rules contained within section
90.902(11), Florida
Statutes (2013), which states:
(11) An original or a duplicate of evidence that would be
admissible under s.
90.803(6), which is maintained in a
foreign country or domestic location and is accompanied by a
certification or declaration from the custodian of the records
7
or another qualified perso...
CopyPublished | District Court of Appeal of Florida
...whether testimony meets a hearsay exception. Simply because one specific hearsay
exception doesn’t apply, doesn’t mean others can’t be considered. See, e.g., Doe v.
Broward Cnty. Sch. Bd.,
744 So. 2d 1068, 1073 (Fla. 4th DCA 1999) (trial court
erred in concluding that “section
90.803(23) preempts all other hearsay exceptions
when the out-of-court statements are made by a child victim of abuse.”)....
CopyPublished | District Court of Appeal of Florida
out-of-court statements are admissible under section
90.803(3), Florida Statutes, to prove the “then-existing”
CopyPublished | Florida 4th District Court of Appeal
...t while
testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” §
90.801, Fla. Stat. (2013). There are a number of
exceptions to the hearsay rule, including the “business records exception”
found in section
90.803(6), Florida Statutes (2013)....
CopyPublished | Florida 5th District Court of Appeal | 2007 WL 4206948
...The error was prejudicial, he claims, because the case hinged on the victim's credibility. Pressley also argues that, in ruling on his motion for new trial, the court erroneously ruled that the statement was admissible as an excited utterance. We agree. Section 90.803(2), Florida Statutes (2006), defines the excited utterance exception to the hearsay rule, as follows: "A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitem...
CopyPublished | District Court of Appeal of Florida
need to establish a witness’ unavailability. See §
90.803(18), Fla. Stat. (2018)(providing: “A statement
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 17907, 2015 WL 7571468
...1979).
month, we do not reach the question of whether the fee contract would
allow for fees in excess of that amount.
Typically, attorney’s fee awards are supported by a combination of
business records and testimony. The business records exception to the
hearsay rule, contained in section 90.803(6), Florida Statutes (2014),
requires the party seeking to admit the record to establish that:
(1) the record was made at or near the time of the event;
(2) was made by or from information transmitted by a person
wit...
...3d 432, 441 (Fla.
4th DCA 2015) (citing Yisrael v. State,
993 So. 2d 952, 956 (Fla. 2008)).
The witness through whom the record is offered must be at least a
“qualified witness,” someone who has the knowledge to describe the
method by which a record was created. §
90.803(6)(a)....
...Contrary to
Nolan’s position at the hearing, the fact that the “fee sheet” was “prepared
during regular work hours” does not mean that it was “kept in the ordinary
course of a regularly conducted business activity” within the meaning of
section 90.803(6)....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 17909, 2015 WL 7568555
...Subsequently, appellee also successfully moved the payment
history, default letters, collection notes, and payoff calculation into
evidence on the same grounds, over appellants’ same objections.
As we have held in the past:
The business records exception, found in section 90.803(6),
Florida Statutes (2013), allows a party to introduce evidence
that would normally be inadmissible hearsay if:
(1) the record was made at or near the time of the event;
(2) was made by or from informat...
...Aurora Loan Servs., No.
4D14-351,
2015 WL 6496304, at *2 (Fla. 4th DCA Oct. 28, 2015) (stating
that a “‘witness’s general testimony that a prior note holder follows a
standard record-keeping practice, without discussing details to show
compliance with section
90.803(6), is not enough to establish a foundation
for the business records exception.’” (quoting Holt v....
CopyPublished | District Court of Appeal of Florida
under the business records hearsay exception. See §
90.803(6)(c), Florida Statutes (2020). The trial court
CopyPublished | Florida 5th District Court of Appeal
fall within the excited utterance exception in section
90.803(2), Florida Statutes (2017). "[T]o qualify
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 14710
restitution. The estimates do not qualify under section
90.803(6), Florida Statutes, which provides a hearsay
CopyPublished | District Court of Appeal of Florida
rule if it qualifies as an admission under section
90.803(18), Florida Statutes (2020). In this case
CopyPublished | Florida 2nd District Court of Appeal
business records under the evidence code. See §
90.803(6), Fla. Stat. (2014). BNYM could have established
CopyPublished | District Court of Appeal of Florida
admission under section
90.803(18), Florida Statutes (2019) apply here. Section
90.803(18) describes
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 16919, 2015 WL 7008176
...rely on statements the child made during a forensic interview with a member of the
county’s Child Protection Team (CPT).
Prior to trial, the State filed a notice of intent to offer the child’s statements
as a hearsay exception pursuant to section 90.803(23), Florida Statutes (2012), and
the court held a hearing on their admissibility....
...This appeal followed.
II.
The standard of review applied to a trial court’s finding that the hearsay
statements of a child victim are reliable and come from a trustworthy source,
making them admissible pursuant to section 90.803(23), is abuse of discretion.
Jones v....
...eflect that the statement provides
sufficient safeguards of reliability.” State v. Townsend,
635 So. 2d 949, 954 (Fla.
1994). Suggested factors for courts to consider in making this determination may
be found in both statutory and case law. See §
90.803(23)(a)(1); Townsend, 635
So....
...Child hearsay statements are admissible when the trial court
fulfills its responsibility to place on the record specific findings of fact that “the
time, content, and circumstances of the statement provide sufficient safeguards of
reliability.” § 90.803(23)(a)(1); see also Hopkins v....
...defendants’ constitutional rights to confrontation); Barton v. State,
704 So. 2d 569,
575 (Fla. 1st DCA 1997) (determining that conclusory findings by a trial court are
not adequate).
Here, the trial judge considered factors suggested by section
90.803(23)(a)(1) and State v....
CopyPublished | Florida 3rd District Court of Appeal | 2008 Fla. App. LEXIS 17260
event or condition, or immediately thereafter.” §
90.803(1), Fla. Stat. (2007). The security officer’s
CopyPublished | Florida 3rd District Court of Appeal | 2008 WL 4862548
...The non-testifying security officer's statements were properly admitted pursuant to the spontaneous statement exception to the hearsay rule, as the security officer was "describing or explaining an event or condition while [he] was perceiving the event or condition, or immediately thereafter." § 90.803(1), Fla....
CopyPublished | District Court of Appeal of Florida | 1981 Fla. App. LEXIS 21616
testimony as a business record pursuant to Section 90.-803(6), Florida Statutes (1979). This ruling was
CopyPublished | Florida 6th District Court of Appeal
recollection recorded exception to hearsay under section
90.803(5), Florida Statutes. The defense objected
CopyPublished | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 6603, 2011 WL 1760430
...The JCC admitted, over the Employer's authenticity and hearsay objections, the medical and billing records of Jackson Memorial Hospital ("Hospital"). This was error, because Claimant failed to present the elements necessary to prove their admissibility. Records of regularly conducted business activity are admissible under section 90.803(6), Florida Statutes, if it is shown that they were "`1) made at or near the time of the event recorded, 2) by, or from information transmitted by, a person with knowledge, 3) kept in the course of a regularly conducted business activi...
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 6879, 2015 WL 2138346
...Because in this case the bank's witness testified to
procedures the servicer for whom she worked used in some detail and also testified
about her personal experience with these loans in particular, the evidence sought to be
adduced could be admitted as a business record. See id. (citing § 90.803(6))....
CopyPublished | Florida 3rd District Court of Appeal | 2008 WL 1958615
...iness records and standard forms made by and found in the possession of the party against whom they are being offered." Remington Arms Co. v. Liberty Mut. Ins. Co.,
810 F.Supp. 1420, 1425-26 (D.Del. 1992). Similarly, the Law Revision Council Note to section
90.803(6), Florida Statutes (1976), provides that the reliability of business records justifies an exception to the hearsay rule....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 1061, 1988 Fla. App. LEXIS 1751, 1988 WL 40535
within the scope of the employee’s duties. See section 90.-803(18)(d). I would, therefore, affirm.
CopyPublished | Florida 1st District Court of Appeal | 2007 Fla. App. LEXIS 8666
the requirements of business records under section
90.803(6), Florida Statutes (2005), or are uncontested
CopyPublished | Florida 5th District Court of Appeal
State sought to introduce the statement under section
90.803(24), Florida Statutes (2017), which provides
CopyPublished | Florida 5th District Court of Appeal
State sought to introduce the statement under section
90.803(24), Florida Statutes (2017), which provides
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 5502
school records was done in accordance with section
90.803, Florida Statutes (1995). A school official
CopyPublished | District Court of Appeal of Florida
Friends as Excited Utterances under Section
90.803(2), Florida Statutes. Appellant argues
CopyPublished | District Court of Appeal of Florida
...Pamela Jo Bondi, Attorney General, Matthew Pavese and Jennifer J. Moore,
Assistant Attorneys General, Tallahassee, for Appellee.
PER CURIAM.
In this direct appeal, appellant claims the trial court erred by failing to make
the required findings of reliability pursuant to section 90.803(23), Florida Statutes
(2009), when it ruled the child victim’s out-of-court statements were admissible at
trial....
CopyPublished | District Court of Appeal of Florida
enforcement personnel.' " Id. (quoting §
90.803(8), Fla. Stat. (1999)). However
CopyPublished | Florida 1st District Court of Appeal | 2015 WL 2375273
required findings of reliability pursuant to section
90.803(23), Florida Statutes (2009), when it ruled
CopyPublished | District Court of Appeal of Florida
the camouflage shirt and said, “That’s him.” Section
90.803(1), Florida Statutes (2014), defines a “spontaneous
CopyPublished | District Court of Appeal of Florida
admitting several child- hearsay statements under section
90.803(23), Florida Statutes (2014). We affirm for
CopyPublished | District Court of Appeal of Florida
admitting several child- hearsay statements under section
90.803(23), Florida Statutes (2014). We affirm for
CopyPublished | Florida 4th District Court of Appeal
the company’s tax returns into evidence under section
90.803(6), Florida Statutes (2023), which provides
CopyPublished | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 6559, 2010 WL 1881095
...See Barrow,
27 So.3d at 220. Thus, the State, in its case in chief, needed to demonstrate Jackson had been murdered, as opposed to, for example, having run away or committed suicide. The instant letter falls within the state-of-mind hearsay exception, see §
90.803(3)(a)1., Fla....
CopyPublished | Supreme Court of Florida | 19 Fla. L. Weekly Supp. 264, 1994 Fla. LEXIS 732, 1994 WL 178130
regarding the introduction of child hearsay under section 90.-803(23), Florida Statutes (1989), because he failed
CopyPublished | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 2686, 2010 WL 743952
...The trial court overruled the objection, explaining that the statement was an exception to hearsay because it was a "statement for diagnosis of treatment." It is true that a statement for purposes of medical diagnosis or treatment is an exception to the general rule prohibiting the admissibility of hearsay. See *287 § 90.803(4), Fla. Stat. (2008). That exception, however, applies to statements made by "a person seeking the diagnosis or treatment." Id. "A statement is not admissible under section 90.803(4) unless there is a foundation showing that the statement was made for the purpose of diagnosis or treatment and that the person making the statement knew it was being made for that purpose." Charles W....
CopyPublished | Florida 2nd District Court of Appeal | 2008 Fla. App. LEXIS 4371
record exception to the hearsay rule under section
90.803(b), Florida Statutes (2006), if production
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 816, 1985 Fla. App. LEXIS 13161
entitled to consider the affidavit pursuant to §
90.803(6)(a), Florida Statutes. See Safe-T-Lawn Inc.
CopyPublished | District Court of Appeal of Florida
acts of subsequent conduct of the declarant. §
90.803(3)(a), Fla. Stat. In essence, “statements of the
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Feb 25, 2025
cated as business records, see FLA. STAT. §
90.803(6) (2014), and that admission of the report
CopyPublished | District Court of Appeal of Florida
Court went on to specify that according to “section
90.803(18)(b), Florida Statutes (1985), a statement
CopyPublished | Florida 1st District Court of Appeal | 1988 WL 27815
...g officer's complained of finding of fact since these reports were not otherwise admissible in a civil action over objection. We disagree. The reports of which Wright complains are admissible under the business records exception to the hearsay rule, section 90.803(6)(a), Florida Statutes (1985)....
...NOTES [1] Section 120.58(1)(a) provides in pertinent part: Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions... . [2] Section 90.803(6)(a) provides: (6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY....
CopyPublished | Florida 3rd District Court of Appeal | 1995 WL 119099
...3d DCA 1991) wherein this court held that although the misconduct issue was not preserved for appellate review the evidence against Jones was so conclusive that any error was harmless. On the hearsay issue this court held that the alleged hearsay testimony was properly admitted pursuant to § 90.803(23), Florida Statutes (1989) and thus no error occurred....
CopyPublished | District Court of Appeal of Florida
So. 2d 992, 1007 (Fla. 4th DCA 2001) (quoting §
90.803(18)(b), Fla. Stat. (2000)); 5 see Adams, 392
CopyPublished | Florida Fifth District Court of Appeal
192 So.3d 620, 621 n.1 (Fla. 4th DCA 2016). Section
90.803(6), Florida Statutes, provides that business
CopyPublished | Court of Appeals for the Eleventh Circuit
entire case from federal court. See Fla. Stat. §
90.803(22) (providing an exception to hearsay for former
CopyPublished | Florida 1st District Court of Appeal | 2017 WL 1018419
the requirements of business records under section
90.803(6), Florida Statutes (2005), or are uncontested
CopyPublished | District Court of Appeal of Florida
victim, seeking their introduction pursuant to section
90.803(23), Florida Statutes (2023). That statute
CopyPublished | District Court of Appeal of Florida
statement in . . . an individual . . . capacity.” §
90.803(18)(a), Fla. Stat. (2023).
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 680, 1985 Fla. App. LEXIS 12939
of the business record hearsay exception of section
90.803(6), Florida Statutes (1983). Therefore, the
CopyPublished | Florida 1st District Court of Appeal | 2012 WL 762033
...A temporary restraining order was entered and a full hearing held on August 10, 2011. Counsel for appellant moved to strike the hearsay alleged in the petition arguing that, because the child was not present, the court could not make the required analysis under the hearsay exception, section 90.803(23), Florida Statutes (2011)....
...unction. It is undisputed in this record that A.K. had reasonable cause to believe B.S. was the victim of sexual violence, see section
784.046(4)(a), and that she is cooperating with law enforcement agencies. See §
784.046(2)(c)1. We recognize that section
90.803(23) is followed in dependency proceedings, D.W.G....
CopyPublished | Florida 1st District Court of Appeal | 2012 Fla. App. LEXIS 3858
required analysis under the hearsay exception, section
90.803(23), Florida Statutes (2011). At the conclusion
CopyPublished | Florida 3rd District Court of Appeal | 12 Fla. L. Weekly 737, 1987 Fla. App. LEXIS 7185
Florida Statutes (1985), and the hearsay rule, §
90.803(3), Florida Statutes (1985), precluded appellant
CopyPublished | Florida 2nd District Court of Appeal | 1995 Fla. App. LEXIS 1959, 1995 WL 79779
...Although he was living with a foster family when the alleged incident occurred, Gregory had been placed out-of-state with his grandmother by the time of the hearing. These witnesses provided hearsay testimony repeating what Gregory told them when he reported the incident. HRS offered this hearsay evidence pursuant to section 90.803(23), Florida Statutes (1992)....
...dmitting Gregory's deposition. Without either (1) Gregory's testimony or (2) corroborative evidence and a determination that Gregory was "unavailable" under section
90.804(1), the hearsay testimony of HRS' other witnesses would be inadmissible under section
90.803(23)....
CopyPublished | District Court of Appeal of Florida
not meet the excited utterance exception of section
90.803(2), Florida Statutes (2013), which allows admission
CopyPublished | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 371, 2014 WL 2516037, 2014 Fla. LEXIS 1813
...t was error, it
was harmless. Petitioner filed a reply, asserting that the decision below should be
quashed and that we should remand because the district court applied an incorrect
standard in finding that the error was harmless.
party.
§ 90.803(5), Fla....
CopyPublished | Florida 1st District Court of Appeal
child was in need of the protection offered by section
90.803(23), Florida Statutes (2014) (protecting children
CopyPublished | Florida 1st District Court of Appeal | 2006 Fla. App. LEXIS 18952
evidence regarding the filing of the motion. Section
90.803(18)(a) provides that a statement by a party
CopyPublished | Florida 6th District Court of Appeal
the excited utterance exception contained in Section
90.803(2), Florida Statutes. The trial court ruled
CopyPublished | Florida 6th District Court of Appeal
the excited utterance exception contained in Section
90.803(2), Florida Statutes. The trial court ruled
CopyPublished | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 9130
authorize the Mother to make them on his behalf. See §
90.803(18)(a)-(c), Fla. Stat. (2009); see also C.A.,
CopyPublished | Florida 5th District Court of Appeal
an individual or a representative capacity[.] §
90.803(6)(a), (18)(a), Fla. Stat. (2016). Medical records
CopyPublished | Florida 5th District Court of Appeal
an individual or a representative capacity[.] §
90.803(6)(a), (18)(a), Fla. Stat. (2016). Medical records
CopyPublished | District Court of Appeal of Florida
whether or not conducted for profit. §
90.803(6)(a), Fla. Stat. (2020).
CopyPublished | Florida 5th District Court of Appeal
exception to the hearsay rule, as codified in section
90.803(6)(a), Florida Statutes (2016).1 Pertinent
CopyPublished | Florida 5th District Court of Appeal
exception to the hearsay rule, as codified in section
90.803(6)(a), Florida Statutes (2016).1 Pertinent
CopyPublished | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 415, 2014 WL 2609192, 2014 Fla. LEXIS 1884
...Specifically, I would
find dispositive the trial court’s refusal to allow Dausch to offer what he claims is a
suicide letter—under the state-of-mind exception to the hearsay rule—to rebut the
State’s argument that Dausch’s suicide attempt demonstrated his consciousness of
guilt. See § 90.803(3), Fla....
CopyPublished | Florida 4th District Court of Appeal
records as an exception to the hearsay rule under section
90.803(6)(a), Florida Statutes (2024). Under this
CopyPublished | Florida 4th District Court of Appeal
Statements by a party opponent are admissible under section
90.803(18)(a), Florida Statutes (2022), as an exception
CopyPublished | District Court of Appeal of Florida
After the deposition, the State moved under section
90.803(23), Florida Statutes (2018), to introduce
CopyPublished | District Court of Appeal of Florida
the statement. A. Excited Utterance—Section
90.803(2) of the Florida Statutes As explained
CopyPublished | District Court of Appeal of Florida
of intent to use child hearsay pursuant to section
90.803(23), Florida Statutes (2019), stating that
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 1663, 1986 Fla. App. LEXIS 9139
could not be received as an admission under section
90.803(18) without violating defendant’s constitutional
CopyPublished | District Court of Appeal of Florida
admissible as a past recollection recorded. See §
90.803(5), Fla. Stat. (2020). 4 3 As this Court explained
CopyPublished | District Court of Appeal of Florida
party admission or for impeachment purposes. See §
90.803(18)(a), Fla. Stat. (2021) (providing a hearsay
CopyPublished | Court of Appeals for the Eleventh Circuit
...giving too
much weight to the arrest affidavits, which have limited probative value under BIA
precedent and which would be inadmissible as hearsay in a Florida court. See In re
Arreguin de Rodriguez, 21 I. & N. Dec. 38, 42 (BIA 1995); Fla. Stat. § 90.803(8).
In any case, he argued, the affidavits did not allege he was caught with any drugs,
and any differences between the reports and his own version of events were
insignificant....
...But
Castano, unlike Garces, never denied that he had committed the offense and did not dispute any
of the factual allegations against him.
25
803(8) (police reports not admissible under public records hearsay exception); Fla.
Stat. § 90.803(8) (same), but that does not bar them from being considered in an
administrative immigration proceeding....
CopyPublished | Court of Appeals for the Eleventh Circuit
...giving too
much weight to the arrest affidavits, which have limited probative value under BIA
precedent and which would be inadmissible as hearsay in a Florida court. See In re
Arreguin de Rodriguez, 21 I. & N. Dec. 38, 42 (BIA 1995); Fla. Stat. § 90.803(8).
In any case, he argued, the affidavits did not allege he was caught with any drugs,
and any differences between the reports and his own version of events were
insignificant....
...But
Castano, unlike Garces, never denied that he had committed the offense and did not dispute any
of the factual allegations against him.
25
803(8) (police reports not admissible under public records hearsay exception); Fla.
Stat. § 90.803(8) (same), but that does not bar them from being considered in an
administrative immigration proceeding....
CopyPublished | District Court of Appeal of Florida
child-hearsay statements were admissible under section
90.803(23), Florida Statutes (2022). It found sufficient
CopyPublished | District Court of Appeal of Florida
business records exception to the hearsay rule. See §
90.803(6)(a), Fla. Stat. (2018). But if that "business
CopyPublished | District Court of Appeal of Florida
Evidence § 262 (Edward W. Cleary ed. 2d ed. 1972). Section
90.803 exceptions “contain sufficient guarantees of
CopyPublished | District Court of Appeal of Florida
an admission “offered against a party” under section
90.803(18), because the brother was not a “party”
CopyPublished | District Court of Appeal of Florida
the hearsay statement was admissible under section
90.803(4), Florida Statutes, as a statement for purposes
CopyPublished | District Court of Appeal of Florida
admissible as an admission of a party opponent. 4 4 Section
90.803(18)(d), Florida Statutes (2019), provides a
CopyPublished | Supreme Court of Florida
exception to the hearsay rule set forth in section
90.803(6)(a), Florida Statutes (2014), counsel for
CopyPublished | District Court of Appeal of Florida
were admissible as a party admission under section
90.803(18)(a), Florida Statutes (2022). We disagree
CopyPublished | District Court of Appeal of Florida
his suppression argument. See §
90.803(18), Fla. Stat. (2022).1 The trial court
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 10774, 2015 WL 4268796
...ry
Appellants initially argue that testimony by the Bank’s witness
concerning Appellants’ loan payment history should have been deemed
inadmissible hearsay and not as an exception to the hearsay rule. The
business records exception, found in section 90.803(6), Florida Statutes
(2013), allows a party to introduce evidence that would normally be
inadmissible hearsay if:
(1) the record was made at or near the time of the event; (2)
2
was ma...
CopyPublished | Florida 1st District Court of Appeal
...burglary).
Therefore, if the mother herself had testified as to the defendant’s statements which
she conveyed to the victim or if appellant had directly conveyed the threats to the
victim, the evidence would be admissible as an admission under section
90.803(18), Florida Statutes (2014)....
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 10493, 2015 WL 4154180
...meaning without considering any
further rules of statutory construction. Id.
"Course of business" is not defined in Amendment 7, but it has a plain and
obvious meaning. Indeed, similar language has been discussed in cases involving
section 90.803(6)(a), Florida Statutes (2003), which sets forth a hearsay exception for
records "kept in the ordinary course of a regularly conducted business activity." Some
-6-
records are kept in...
CopyPublished | District Court of Appeal of Florida
introduce child hearsay testimony, pursuant to section
90.803(23), Florida Statutes (2018). The trial court
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 224
...4th DCA 2010).
On a separate issue, we affirm the determination that appellant violated
her probation. The victim’s 911 call was admitted as substantive evidence
prior to the victim’s testimony. The call falls under the excited utterance
exception to the rule against hearsay. See § 90.803(2), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 221, 2016 WL 67357
...t err by admitting testimony
recounting Appellant’s co-conspirator’s statements. Out-of-court
statements offered for the truth of the matter asserted are hearsay and
generally inadmissible. §
90.801, Fla. Stat. (2013). However, under
section
90.803(18)(e), Florida Statutes (2013), a statement offered against
a party that is “[a] statement by a person who was a coconspirator of the
party during the course, and in furtherance, of the conspiracy” is
admissible as an exception to the hearsay rule....
...s evidence at
trial that the men purchased ammunition together for use in the robbery,
drove to the robbery together, and split the stolen goods. This is suitable
proof of conspiracy to allow the admission of the co-conspirator’s
statements under section 90.803(18)(e).
Appellant also argues the trial court improperly calculated his
sentence....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 152, 1988 Fla. App. LEXIS 49, 1988 WL 338
utterance exception to the hearsay rule as found in section
90.803(2), Florida Statutes (1985). Addressing the
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 65
observation of the event or condition described. See §
90.803(1) Fla.Stat. (1993) (a spontaneous statement is
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 382, 1987 Fla. App. LEXIS 11883
information in paragraph 1 was admissible under section
90.803, Florida Statutes (1985), as an exception to
CopyPublished | District Court of Appeal of Florida
exception to the hearsay rule, codified at section
90.803(6), Florida Statutes. The trial court sustained
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 1052, 2016 WL 313972
...First, a provision of the Sexually Violent Predator Act permits
hearsay evidence in “all civil commitment proceedings for sexually violent
predators.” §
394.9155(5), Fla. Stat. (2014). Second, the report fell under
an exception to the hearsay rule as an admission by an agent of a party
opponent. See §
90.803(18), Fla....
...The trial court made no finding that the DCF-commissioned
report was unreliable, which would preclude its admissibility.
Aside from this statutory provision, the report was also admissible
because it qualifies as an exception to the hearsay rule as an admission
by an agent of a party opponent. See § 90.803(18).
One of the parties to a civil commitment proceeding is obviously the
state....
...The DCF report concerned the viability of the Test’s application to
recidivism rates of sexual predators; it was a statement by an agent of DCF
“concerning a matter within the scope of the agency or employment
thereof, made during the existence of the relationship.” § 90.803(18)(d).
We applied the party opponent exception to the hearsay rule against
the state in the criminal case of Garland v....
CopyPublished | Florida 2nd District Court of Appeal
and her recorded interview with a detective. See §
90.803(23), Fla. Stat. (2015).2 An evidentiary hearing
CopyPublished | District Court of Appeal of Florida
be admissible [as business records under section
90.803(6)(a), Florida Statutes], the movant is required
CopyPublished | District Court of Appeal of Florida
the hearsay rule, section
90.803(3)(a)(2), Florida Statutes (2021). Section
90.803(3)(a)(2) allows for
CopyPublished | District Court of Appeal of Florida | 2000 Fla. App. LEXIS 155
without conducting the hearing required by section
90.803(23), Florida Statutes (1997); and (6) a letter
CopyPublished | Supreme Court of Florida
as an exception to the hearsay evidence rule. §
90.803(18), Fla. Stat. “In the context of a criminal
CopyPublished | District Court of Appeal of Florida
excited utterance exception to the hearsay rule. See §
90.803(2), Fla. Stat. Finally, there was no error in
CopyPublished | District Court of Appeal of Florida
trial court made findings of reliability under section
90.803(23), * the court was still obligated “to conduct
CopyPublished | District Court of Appeal of Florida
business records exception to the hearsay rule, section
90.803(6)(a), Florida Statutes (2021). Under that
CopyPublished | Florida 5th District Court of Appeal | 2015 WL 477808
recollection exception to the hearsay rule. See §
90.803(5), Fla. Stat. This was error.2 In Florida, the
CopyPublished | Florida 5th District Court of Appeal
the admissibility of this testimony under section
90.803(23), Florida Statutes (2017). We need not address
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 1447, 2016 WL 403311
...evidentiary
rulings regarding business records. A trial court’s ruling on the
admissibility of evidence is reviewed for abuse of discretion. Yang,
123 So.
3d at 620. That discretion is limited by the rules of evidence. Id.
Pursuant to section
90.803(6)(a), Florida Statutes (2013), for business
records to be admitted into evidence “the proponent must show that (1)
the record was made at or near the time of the event; (2) was made by or
from information transmitted by a person wit...
...it was a regular practice of that business to make such a record.” Yisrael
v. State,
993 So. 2d 952, 956 (Fla. 2008).
The foundation necessary for admission of a business record may be
established by a records custodian or other qualified witness. §
90.803(6)(a), Fla....
CopyPublished | Florida 4th District Court of Appeal
under an exception to the hearsay rule. Id. Section
90.803(6)(a), Florida Statutes (2023), creates a business
CopyPublished | Florida 3rd District Court of Appeal
properly considered all evidence before it. See §
90.803(6), Fla. Stat. (2024); §
90.902(11), Fla. Stat
CopyPublished | Florida 3rd District Court of Appeal
untrustworthy’”) (additional quotation omitted); see also §
90.803(3)(a) Fla. Stat. (2023) (providing the following
CopyPublished | Florida 5th District Court of Appeal
192 So. 3d 620, 621 n.1 (Fla. 4th DCA 2016). Section
90.803(6), Florida Statutes, provides that business
CopyPublished | Florida 5th District Court of Appeal
bringing criminal charges, nor should it be. Section
90.803(23), Florida Statutes (2015), specifically
CopyPublished | Florida 1st District Court of Appeal | 2005 Fla. App. LEXIS 1875
provide sufficient safeguards of ' reliability. See §
90.803(23)(a)(l), Fla. Stat. (2004); State v. Townsend
CopyPublished | District Court of Appeal of Florida
is admissible in evidence at later proceedings. §
90.803(18), Fla. Stat.; Barnes v. State,
970 So. 2d 332 CopyPublished | District Court of Appeal of Florida
record exception to the hearsay rule under section
90.803(6), Florida Statutes . . . .” 58 But for a
CopyPublished | District Court of Appeal of Florida
CopyPublished | Florida 3rd District Court of Appeal
child victims introduced into evidence under section
90.803(23) shall not be allowed into the jury room
CopyPublished | Florida 2nd District Court of Appeal
" §
90.802, Fla. Stat. (2023). Although section
90.803(6) permits the 2 We reject without
CopyPublished | District Court of Appeal of Florida
to the hearsay rule, which is contained in section
90.803, Florida Statutes, allows the trial court to
CopyPublished | Florida 2nd District Court of Appeal | 2006 Fla. App. LEXIS 1685
excited utterance exception to the hearsay rule. See §
90.803(2), Fla. Stat. (2004). In an attempt to establish
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 18402, 2015 WL 8295335
...sexual battery of a child less than twelve years of age by a defendant
eighteen years or older, pursuant to section
794.011(2)(a), Florida
Statutes (2007). He claims that the court’s oral finding of reliability at a
child hearsay hearing was insufficient under section
90.803(23)(c),
Florida Statutes (2013), to constitute a specific finding of fact on the
record....
...filed in
the court record prior to the presentation of that evidence. We disagree,
and affirm.
The State filed a pretrial notice asserting that certain video evidence
and testimony qualified for use at trial under the child hearsay exception
in section 90.803(23), and the court held two child hearsay hearings on
the issue before the trial....
...day after the jury trial began, but the order was not filed in the court
record by the time the evidence was admitted.1 Instead, the trial court
filed its written order setting out specific findings of reliability on the day
of the video’s admission.
Section 90.803(23) requires “the State to give an accused prior notice
of the potential use of a child’s statements about an event, which then
requires the Court to conduct a separate hearing to determine the
reliability of the proposed evidence.” Farinacci v....
...However, it is
undisputed that the court completed its order shortly after the start of the trial.
2
....
(c) The court shall make specific findings of fact, on the
record, as to the basis for its ruling under this subsection.
§ 90.803(23), Fla....
CopyPublished | Florida 1st District Court of Appeal | 1981 Fla. App. LEXIS 21882
thrust of appellants’ first point is that, since Section
90.803(18)(e), Florida Statutes (1979), requires a
CopyPublished | District Court of Appeal of Florida
802 to the contrary notwithstanding," section
90.803 sets forth many hearsay exceptions,
CopyPublished | District Court of Appeal of Florida
exists under section
90.803 or section
90.804, Florida Statutes (2017). Section
90.803(2), Florida
CopyPublished | Florida 1st District Court of Appeal | 2008 WL 5101117
...Gerace, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. Appellant Jeremiah Johnson seeks review of his convictions for sexual battery upon a child younger than twelve and lewd or lascivious molestation. The only issue in this case is whether the trial court complied with the dictates of section 90.803(23), Florida Statutes (2007), and State v....
...1994), in determining the reliability of certain incriminating out-of-court statements by the child-victim. For the State to use, at trial, evidence of a child-victim's out-of-court statements describing sexual abuse, the trial court must find that the hearsay statements are reliable. See § 90.803(23)(a)2., Fla....
...We further find that the judge analyzed the child's statements in respect of each of the applicable factors listed in the statute and Townsend. As the child-victim testified at trial in this case, the trial judge was not required to consider whether the hearsay statements were supported by other corroborative evidence. See § 90.803(23)(a)2., Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2001 Fla. App. LEXIS 17073
adjudication of delinquency is reversed. . Section
90.803(5), provides: Recorded recollection. — A memorandum
CopyPublished | District Court of Appeal of Florida
out-of-court statements are admissible under section
90.803(3), Florida Statutes, to prove the “then-existing”
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 146, 1986 Fla. App. LEXIS 11618
type evidence might also be admissible under section
90.803(3), Florida Statutes (1985). In addition, in
CopyPublished | Florida 1st District Court of Appeal
to Pugh is admissible as an admission by Noack. §
90.803(18), Fla. Stat. However, we find no hearsay exception
CopyPublished | Florida 1st District Court of Appeal
to Pugh is admissible as an admission by Noack. §
90.803(18), Fla. Stat. However, we find no hearsay exception
CopyPublished | District Court of Appeal of Florida
to Pugh is admissible as an admission by Noack. §
90.803(18), Fla. Stat. However, we find no hearsay exception
CopyPublished | Florida 3rd District Court of Appeal
requisite factors for admission as provided in section
90.803(6) ).
CopyPublished | Florida 3rd District Court of Appeal
requisite factors for admission as provided in section
90.803(6) ).
CopyPublished | District Court of Appeal of Florida
witnesses’ out-of-court statements pursuant to section
90.803(23), Florida Statutes (2001), the hearsay exception
CopyPublished | District Court of Appeal of Florida
admission of the report as a business record under section
90.803(6), Florida Statutes. Peters was found to have
CopyPublished | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 17899
evidence as an exception to the hearsay rule under section
90.803(6)(a), Florida Statutes (2015), and thus can
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 24471
business records exception to the hearsay rule, §
90.803(6)(a), Fla. Stat., nor in its failure to give
CopyPublished | District Court of Appeal of Florida
. This principle is codified within section
90.803(6) itself, which provides trial courts
CopyPublished | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 18768, 2015 WL 8932416
... and its employee could not testify as to the accuracy of that balance. Here, on the
contrary, Mr. Chibnik testified he was familiar with Ms. Marquez’ account which,
prior to transfer, was kept by Aurora in the ordinary course of regularly conducted
activity. See § 90.803(6), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 19086, 35 Fla. L. Weekly Fed. D 2844
...On appeal defendant argues that it was error to admit the victim's pretrial hearsay statements and, also, the testimony of the cousins. We agree that the admission of child hearsay statements was error and reverse for a new trial. [1] As required by §
90.803(23), the order admitting the child hearsay statements failed to make specific findings of fact as to reliability. Instead the order merely recited boilerplate language as to the ultimate finding of admissibility. In Hopkins v. State,
632 So.2d 1372 (Fla.1994), the Florida Supreme Court held: "Mere recitation of the boilerplate language of [section
90.803(23)] ......
...the defendant's constitutional right to confrontation." [e.s., c.o.] Hopkins,
632 So.2d at 1377; see also Lacue v. State,
562 So.2d 388 (Fla. 4th DCA 1990) (reversing because trial court made no specific findings of fact on the record as required by §
90.803; boilerplate language does not suffice). We find that the order admitting the child's hearsay merely tracked the statutory language of §
90.803(23) and was therefore insufficient to support the admission of such statements at trial....
CopyPublished | District Court of Appeal of Florida
“state of mind” exception to the hearsay rule. See §
90.803(3)(a)(1), Fla. Stat. (2019). 5 The plaintiff’s
CopyPublished | District Court of Appeal of Florida
foundation for the records’ admissibility under section
90.803(6)(a).” Id. at 598. BANA’s execution
CopyPublished | Florida 5th District Court of Appeal
which was admitted into evidence pursuant to section
90.803(23), Florida Statutes (2014), the victim specifically
CopyPublished | Florida 5th District Court of Appeal
which was admitted into evidence pursuant to section
90.803(23), Florida Statutes (2014), the victim specifically
CopyPublished | District Court of Appeal of Florida | 1989 Fla. App. LEXIS 7016
business records exception to the hearsay rule. §
90.803(6), Fla.Stat. (1987). The copy of the vehicle’s
CopyPublished | Florida 3rd District Court of Appeal | 1989 WL 149638
...We agree that the documents were improperly entered into evidence. There was no testimony from the custodian who actually created or kept those documents as would qualify the documents as admissible under the business records exception to the hearsay rule. § 90.803(6), Fla....
CopyPublished | District Court of Appeal of Florida
state can be a “party” within the meaning of section
90.803(18), Florida Statutes (1995), so that a criminal
CopyPublished | District Court of Appeal of Florida
90.801(1)(c), Fla. Stat. (2017). Pursuant to section
90.803(2), Florida Statutes (2017), an exception to
CopyPublished | Florida 3rd District Court of Appeal | 2008 Fla. App. LEXIS 11834
business record exception to the hearsay rule. §
90.803(6)(a), Fla. Stat. (2007).2 The victim identified
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1999) (describing legislative intent behind section
90.803(23), Florida Statutes) (citation omitted).
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531, 536–37 (Fla. 2020) (holding that under section
90.803(6), Florida Statutes, the proponent of a business
CopyPublished | District Court of Appeal of Florida
Victim’s hearsay statements as required by section
90.803(23), Florida Statutes (2022). The trial court
CopyPublished | Florida 3rd District Court of Appeal
BOKOR, JJ. PER CURIAM. Affirmed. See §
90.803(22), Fla. Stat.; Florida Power & Light Co
CopyPublished | District Court of Appeal of Florida
business record hearsay exception as codified in section
90.803, Florida Statutes (2018), which defines a business
CopyPublished | District Court of Appeal of Florida | 2016 Fla. App. LEXIS 12760
admissible as an admission against interest under section
90.803(18)(a), Florida Statutes (2015). The Case Manager
CopyPublished | District Court of Appeal of Florida
that her past statement was accurate. Section
90.803(5), Florida Statutes (2017), defines a past
CopyPublished | District Court of Appeal of Florida
admitting several child hearsay statements. Section
90.803(23)(a), Florida Statutes (2016), provides—under
CopyPublished | District Court of Appeal of Florida | 2017 Fla. App. LEXIS 12053
evidence available for inspection, in violation of section
90.803(6)(c), Florida Statutes. However, the defense
CopyPublished | District Court of Appeal of Florida
. This principle is codified within section
90.803(6) itself, which provides trial courts
CopyPublished | Florida 3rd District Court of Appeal
statements of child abuse or neglect under section
90.803(23), Florida Statutes (2024). The trial court
CopyPublished | Florida 4th District Court of Appeal | 2014 WL 4083405, 2014 Fla. App. LEXIS 12807, 39 Fla. L. Weekly Fed. D 1759
...He was subsequently sentenced to
life in prison.
Our standard of review of the trial court’s order denying appellant’s
motion for judgment of acquittal is de novo. Ortiz v. State,
36 So. 3d 901,
His prior testimony was clearly admissible, see State v. Billie,
881 So. 2d 637,
639 (Fla. 3d DCA 2004); §
90.803(18), Fla....
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business records exception to the hearsay rule, section
90.803(6)(a) Florida Statutes (2014). In denying
CopyPublished | Florida 3rd District Court of Appeal
MILLER, JJ. PER CURIAM. Affirmed. See §
90.803(6), Fla. Stat. (2025) (providing that “[r]ecords
CopyPublished | Florida 2nd District Court of Appeal
report were subject to an exception under section
90.803. Finding the statement inadmissible
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 4311, 24 Fla. L. Weekly Fed. D 895
jury instruction pursuant to Florida Statutes section
90.803(18)(e). The state’s legal arguments below did
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 3815
Texas defense witness testimony was error. See §
90.803(10), Fla.Stat. (1989); Terranova v. State, 474
CopyPublished | District Court of Appeal of Florida
could qualify as a hearsay exception under section
90.803(6) because nothing in the record before this
CopyPublished | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 431, 2017 Fla. LEXIS 756
offered against Robarás as a party admission. See §
90.803(18)(a), Fla. Stat. (2014). Therefore, the court
CopyPublished | District Court of Appeal of Florida
excepted from the general hearsay prohibition. See §
90.803(18)(a), Fla. Stat.; see also Moore v. State, 701
CopyPublished | District Court of Appeal of Florida
the statement of a child victim pursuant to section
90.803(23), Florida Statutes. At the child-hearsay
CopyPublished | District Court of Appeal of Florida
“state of mind” exception to the hearsay rule. See §
90.803(3)(a)1, Fla. Stat. (2014). The statements were
CopyPublished | District Court of Appeal of Florida
1. Business Records Exception Section
90.803(6), Florida Statutes (2023), sets forth the
CopyPublished | District Court of Appeal of Florida
pursuant to section
90.803(1) . . . or an excited utterance pursuant to section
90.803(2), [Florida
CopyPublished | District Court of Appeal of Florida
event, i.e., her argument with Charlier. See §
90.803(1), Fla. Stat. (2016) (covering statements “describing
CopyPublished | District Court of Appeal of Florida
properly admitted as an excited utterance. See §
90.803(2), Fla. Stat. (defining excited utterance as
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 1061, 1989 Fla. App. LEXIS 2290, 1989 WL 41169
insufficient compliance with the requirement of section 90.-803(23)(b), Florida Statutes (1985), as to advance
CopyPublished | District Court of Appeal of Florida
business record exception to the hearsay rule. See §
90.803(6)(a), Fla. Stat. (2008). The trial court initially
CopyPublished | Supreme Court of Florida
...ing
circumstances to show the trustworthiness of the statement).
Allen’s alternative suggestion that the statement was admissible as an
admission of a party opponent or a co-conspirator’s statement is unpreserved and
without merit. See § 90.803(18)(e), Fla....
...In
order to be admitted as an admission of a party, the statement must be made while
the conspiracy is in existence and before it is terminated. See Calvert v. State,
730
So. 2d 316, 319 (Fla. 5th DCA 1999) (noting that statements made after conspiracy
had ended were inadmissible under section
90.803(18)(e)); see also Brooks v.
State, 787 So....
...t issue, see Foster v. State,
778
So. 2d 906, 915 (Fla. 2000), any statement allegedly made by Quintin to Martin
while they were incarcerated does not meet the admission requirements of section
- 19 -
90.803(18)(e), because it was not made while the conspiracy was in existence....
CopyPublished | Florida 3rd District Court of Appeal
exception as a statement of a child victim. See §
90.803(23), Fla. Stat. (2023). On appeal, the Mother
CopyPublished | Florida 4th District Court of Appeal
the exception in criminal cases. See id. (citing §
90.803(8), Fla. Stat. (1999)). Moreover, the mere
CopyPublished | District Court of Appeal of Florida
court held a child hearsay hearing pursuant to section
90.803(23), Florida Statutes (2017), the court admitted
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 5446, 2015 WL 1650438
...Written estimates may qualify as a business record exception to the hearsay rule if
the proponent of the evidence calls a witness who can lay a proper foundation
establishing that "production of estimates is a regularly conducted business activity."
Butler v. State,
970 So. 2d 919, 920-21 (Fla. 1st DCA 2007); see also §
90.803(6)(a),
Fla. Stat. (2013). "Alternatively, section
90.803(6)(c) provides that the proponent can
also establish the foundation by certification or declaration." Butler, 970 So....
CopyPublished | District Court of Appeal of Florida
they carry adequate indicia of reliability. See §
90.803(6)(a), Fla. Stat. (2022); Ocwen Loan Servicing
