Florida/Georgia Personal Injury & Workers Compensation

...Jones claims that the trial court erred in not admitting the statements as substantive evidence and in failing to address their impeachment value. We first consider whether these statements should have been admitted as substantive evidence. Pursuant to section 90.804(2), Florida Statutes (1997), in order for a confession to be admissible as a declaration against penal interest, the declarant must be unavailable as a witness and there must be corroborating circumstances to show the trustworthiness of the statement....

...The requirement of unavailability parallels Federal Rule of Evidence 804(b)(3), as well as the evidence rules of the vast majority of state court jurisdictions. See McCormick on Evidence § 320 (John Strong ed., 4th ed.1992). Because Schofield was available and in fact testified at the most recent proceeding, section 90.804(2) precludes a consideration of the hearsay testimony as substantive evidence. [10] Jones does not attack the constitutionality of section 90.804(2). He concedes that section 90.804(2) applies but asserts that due process considerations set forth in Chambers v....

...since his last evidentiary hearing. He claims that because of this additional evidence Schofield's confessions now bear sufficient indicia of reliability. We disagree. None of the additional evidence requires that we disregard the plain language of section 90.804(2). The issue of whether or not the confessions bear sufficient indicia of reliability affects the admissibility as substantive evidence only if the declarant is unavailable as a witness. See § 90.804(2)....

...1038, 35 L.Ed.2d 297 (1973), despite its hearsay nature. We reject Sims' first ground (an admission by party opponent) and fourth ground ( Chambers v. Mississippi argument) as being without merit. [6] His remaining two bases for admission, however, deserve analysis. Section 90.804(2) provides several exceptions to the hearsay rule, one of which is for statements against interest: (c) Statement against interest—A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or prop...

...statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. § 90.804(2)(c), Fla....

...Accordingly, even though Baldree is unavailable and his statements appear to be against his interest, we find no error in the trial court's determination that they have not been sufficiently corroborated by any other evidence and thus lack the indicia of trustworthiness to be admitted as substantive evidence under section 90.804(2)(c)....

...3d DCA 1982) (finding no error in exclusion of hearsay testimony that another person had admitted committing crime of which Jackson was accused because defense *662 did not proffer "corroborating circumstances [to] show the trustworthiness of the statement" as is required to justify admissibility under section 90.804(2)(c)); cf. Ards v. State, 458 So.2d 379, 380 (Fla. 5th DCA 1984) (holding that evidence that another person admitted to committing the crime for which Ards was charged was inadmissible under section 90.804(2)(c) because the corroborating circumstances "were ambiguous, unreliable and not trustworthy")....

...[4] Gray's affidavit was signed October 24, 1999, but it was not considered by the trial court during the postconviction proceedings at that time because defense counsel did not receive a copy of the affidavit until after the hearing had ended. [5] In so concluding, the trial court cited to section 90.804(2)(c), Florida Statutes, which discusses the admissibility of statements against penal interest....

...estimony because the state did not make a diligent effort to locate him before offering that testimony as evidence. Alternatively, Jackson argues that he should have been granted a continuance to find Jones himself. We find no merit in these claims. Section 90.804(1)(e) of the Florida Statutes (1983), provides that a witness may be declared unavailable if he "[i]s absent from the hearing, and the proponent of his statement has been unable to procure his attendance or testimony by process or othe...

...iscretion clearly appears. Outlaw v. State, 269 So.2d 403, 404 (Fla. 4th DCA 1972), cert. denied, 273 So.2d 80 (Fla. 1973); see also Stano v. State, 473 So.2d 1282, 1286 (Fla. 1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 869, 88 L.Ed.2d 907 (1986). Section 90.804(1)(e) required the state to exercise due diligence in making a good faith effort to locate Jones....

...And we would have been able to argue they got — you know, there is a reasonable doubt because of that. If that fails, then, you know, it would be raised on appellate review as to whether or not it was admissible as hearsay, which it was. 10 .Florida Evidence Code § 90.804(2)(c) provides: (2) Hearsay Exceptions....

...nformation which was not reasonably pertinent in medical treatment. The state maintains that even if portions of the statement to Dr. Mallea were not admissible under section 90.803(4) the entire statement was admissible as a dying declaration under section 90.804(2)....

...[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))....

...The district court, relying in part on this Court's decision in Perez v. State, 536 So.2d 206 (Fla. 1988), cert. denied, 492 U.S. 923, 109 S.Ct. 3253, 106 L.Ed.2d 599 (1989), ruled that the child was in fact "unavailable" under the "existing physical or mental illness or infirmity" exception contained in section 90.804(1) because of the child's age and lack of understanding as to the duty or obligation to tell the truth....

...r the child's statements were reliable. 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)....

...4 of the abuse 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)....

...d 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....

...A child is "unavailable" as a witness if the court finds, based on expert testimony, that a substantial likelihood exists that the child will suffer severe emotional or mental harm if the child testifies or finds that the child falls within one of the definitions for unavailability set forth in section 90.804(1). Section 90.804(1) provides that a witness is unavailable for purposes of admitting a hearsay statement if the witness: (a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of his statement; (...

...endance or testimony by process or other reasonable means. (Emphasis added.) As previously indicated, the child's hearsay statements in this case were admitted based on the district court's ruling in Townsend I that the child was "unavailable" under section 90.804(1)(d) due to incompetency....

...ability 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. The district court reached this conclusion by determining that the reference in section 90.804(1) to "` then existing ......

...mental ... infirmity'" requires that the mental condition of the declarant must have arisen after the purported hearsay statement was made. The district court also noted that incompetency is not a specifically enumerated definition for unavailability under section 90.804(1)....

...ating the necessity that the child understand the duty of a witness to tell the truth. Perez, 536 So.2d at 211. In Perez, however, we did not specifically address whether incompetency fell within any of the definitions of unavailability set forth in section 90.804(1). It was on that issue that the district court distinguished Perez from the instant case. Consequently, we now address that issue. As noted by the district court, section 90.804(1)(d) provides that a declarant is unavailable if the declarant cannot testify because of a "then existing physical or mental illness or infirmity." Although the "then existing" language of the statute does refer to an infirmity existi...

...Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984) (unavailability and incompetence are not the same because they serve different purposes; if a declarant is incompetent, then the statement is too unreliable). We agree with the majority position and find that an incompetent witness is an unavailable witness within the meaning of section 90.804(1)(d)'s existing mental infirmity requirement....

...ity of the circumstances in which San Martin's confession was made makes the statement inherently trustworthy and renders the declarant particularly worthy of belief. While a statement against penal interest is an exception to the hearsay rule under section 90.804(2)(c), Florida Statutes (1995), we cannot say that it is a firmly rooted exception. Prior to the adoption of the Evidence Code, this Court first recognized the statement-against-penal-interest exception in Baker v. State, 336 So.2d 364 (Fla.1976). [1] The exception was thereafter codified as section 90.804(2)(c), and included the following sentence: "A statement or confession which is offered against the accused in a criminal action, and which is made by a co-defendant or other person implicating both himself and the accused, is not within this exception." See also Nelson v....

...Mary Witcher, the paramedic with Giger at the time Alice made the statements, heard Alice repeat "I'm going to die" at least two dozen times. Statements made concerning the cause or circumstances of what the declarant believes to be his or her impending death are admissible as hearsay exceptions. § 90.804(2)(b), Fla....

...Two of the inmates then testified that during a particular sequence of events, Witteman told one of them to shut up or "he'd kill him like he did the other old bastard." The trial court found that Witteman's statement as relayed by the two inmates was untrustworthy and thus did not meet the requirements of section 90.804(2)(c), Florida Statutes (1993). Sliney contends that Witteman's statement was trustworthy and that even if the statement did not meet the requirements of section 90.804(2)(c), his constitutional right to present a defense should have taken precedence over the exclusionary rules of evidence....

...ile testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2003). Hearsay is inadmissible at trial except as specifically provide by statute. See § 90.802, Fla. Stat. (2003). Section 90.804 of the Florida Statutes (2003) provides an exception to the hearsay rule of inadmissibility for out-of-court statements offered for the truth of the matter asserted made by an unavailable witness if the statement qualifies as a "statement against interest." See § 90.804(2)(c), Fla....

...was unavailable and, therefore, the statement against interest exception is totally inapplicable. Florida law requires that for the statement against interest exception to apply, the declarant must first be determined be "unavailable" for trial. See § 90.804, Fla....

...f death or because of then-existing physical or mental illness or infirmity; or (e) Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means. § 90.804(1)(a)-(e), Fla....

...As noted above, this exception applies to "[a] statement which, at the time of its making,... tended to subject the declarant to liability ..., so that a person in the declarant's position would not have made the statement unless he or she believed it to be true." § 90.804(2)(c), Fla....

...Montalvo had not been listed as a defense witness in accordance with Florida Rule of Criminal Procedure 3.220(b)(3) (currently Florida Rule of Criminal Procedure 3.220(d)(1)). Defense counsel argued that the deposition testimony could be admitted into evidence pursuant to section 90.804(2)(a), Florida Statutes (1989)....

...When unable to produce Mr. Montalvo the following day, counsel renewed his request to utilize the prior deposition testimony. The court again denied the request. We are presented with the question of whether a deposition is admissible as substantive evidence, under section 90.804(2)(a) of the evidence code, when, at the time of its taking, opposing counsel is not alerted by compliance with Rule of Criminal Procedure 3.190(j) that the deposition may be used at trial. We hold that it is not. Accord State v. James ; Campos v. State, 489 So.2d 1238 (Fla. 3d DCA 1986) (discovery deposition that qualifies as a hearsay exception under section 90.804(2)(a) is not admissible as substantive evidence unless it qualifies for such admission under the criminal rules of procedure); Jackson v....

...mony before it can be used as substantive evidence in a criminal case. The holding in State v. James that discovery depositions are not admissible as substantive evidence absent compliance with Rule 3.190(j) was in no way modified by the adoption of section 90.804(2)(a). [2] In fact, the necessity of meeting the procedural requirements for perpetuating testimony before a deposition is admissible as substantive evidence is recognized in section 90.804(2)(a) by the express requirement that the deposition must be "taken in compliance with law." Accord Terrell v....

...I see no reason why the same should not hold true under Florida's procedural and evidentiary rules. Accord Ehrhardt, Florida Evidence § 804.2, at 670-71 (1992). It is generally accepted that when a deposition is not admissible under the Florida Rules of Civil Procedure it may still be offered as substantive evidence under section 90.804(2)(a), Florida Statutes (1989), if the requirements of that exception are met....

...1st DCA 1984) (when deposition meets the requirements of either the rule of civil procedure or the evidentiary rule, it is admissible), review denied, 467 So.2d 999 (Fla. 1985); see also Ehrhardt, Florida Evidence § 804.2, at 669-70. I would apply the same rule in criminal cases. Under the plain language of section 90.804(2)(a), the exception to the hearsay rule recognized therein is applicable in criminal as well as civil cases. It is illogical to think that compliance with Rule of Criminal Procedure 3.190(j) was intended to be a prerequisite to admission of depositions under section 90.804(2)(a). If such were the case, there would be no need to make section 90.804(2)(a) applicable in criminal proceedings since depositions taken in compliance with rule 3.190(j) would be admissible under the procedural rule....

...The fact that it may be difficult for the proponent of discovery deposition testimony to establish that the party against whom the testimony is offered, "had similar motive to develop the testimony by direct, cross, or redirect examination," as required by section 90.804(2)(a) [3] does not warrant a blanket rule that discovery depositions *503 may never be used as substantive evidence....

...in the use of discovery depositions as substantive evidence in cases such as this. Accordingly, I would hold that, where the confrontation rights of the defendant will not be compromised, if the declarant is unavailable and the other requirements of section 90.804(2)(a) are met a discovery deposition is admissible as substantive evidence under that exception to the hearsay rule even if the deposition would not be admissible under the Rules of Criminal Procedure....

...Montalvo as a person "whom defense counsel expects to call as a witness at trial" pursuant to rule 3.220(b)(3). Under the circumstances, the State had no reason to rigorously prepare for or pursue questioning of the witness. [5] I also agree that Rodriguez has failed to establish that Mr. Montalvo was "unavailable" under section 90.804(1)(e), Florida Statutes (1989). [6] Mr. Montalvo cannot be considered "unavailable" under section 90.804(1)(e) because the defense failed to establish that a diligent attempt to secure the witness' attendance had been made....

...e. One option would be to depose the witness after he or she is listed as a defense witness. The other would be to wait to cross-examine and impeach the witness at trial with prior inconsistent statements. See Jackson v. State, 453 So.2d at 457. [6] Section 90.804(1)(e) provides that a declarant is unavailable if he [i]s absent from the hearing, and the proponent of his statement has been unable to procure his attendance or testimony by process or other reasonable means....

...nt Sager admitted to cutting the victim's throat. [9] He claims this testimony would have allowed the jury to conclude that Voorhees was not sufficiently involved in the crime to warrant a jury verdict of first-degree murder and was admissible under section 90.804(2)(c), Florida Statutes (1991), which states: HEARSAY EXCEPTIONS.—The following are not excluded under s....

...Voorhees. [11] We agree with Voorhees that it was error for the trial court not to admit Sager's separate statements to both Mississippi and Pasco County officers while Sager was in jail in Mississippi; the statements were admissible on the basis of section 90.804(2)(c)....

...). [2] The trial court ruled the evidence inadmissible as a dying declaration because it did not concern the "physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death." § 90.804(2)(b), Florida Statutes (2006)....

...tion has been taken and the added party desires to use such testimony against a party represented by counsel at the deposition. Certainly, rule 1.330 is not intended to supplant the "former testimony" rule, now codified in the Florida Evidence Code, section 90.804(2)(a), Florida Statutes (1983)....

...is admissible. Dinter v. Brewer, supra . Accordingly, we do not determine whether Dr. Smith's deposition testimony should be admissible under rule 1.330 because we hold it admissible under the "former testimony" rule. The "former testimony" rule in section 90.804(2)(a) is the counterpart of Federal Rule of Evidence 804(b)(1) and basically codifies the common law rule of evidence previously recognized....

...The postconviction court accepted the defense's argument that Bravo's affidavit constituted newly discovered evidence, but ruled that the affidavit would not constitute substantive evidence because it was inadmissible hearsay and Bravo was never declared to be "unavailable" under section 90.804(1), Florida Statutes (2009)....

...ing, and Carpenter were jailed together. As more fully explained below, we determine that the trial court committed harmful error in prohibiting Shay and Mendoza from testifying concerning Pailing's statements. The issue before us primarily involves section 90.804(2)(c), Florida Statutes (2000), [14] which provides that the following are not excluded as hearsay if the declarant is unavailable as a witness: A statement which, at the time of its making, was so far contrary to the declarant's pecun...

...Pailing, and said words that interpreted—amounted to that they were friends with the defendant. And I think that the absence of corroborating circumstances to corroborate what they were saying, and the inherent untrustworthiness, makes the statements inadmissible under Florida Statute 90.804(2)(c)....

...[16] After careful consideration, we determine that the trial court erred in ruling that the testimony of both Shay and Mendoza could not be admitted because Pailing did not explicitly state to either of them that Carpenter was not involved in the crime. Carpenter correctly notes that section 90.804(2)(c) applies to statements "tending to expose the declarant to criminal liability and offered to exculpate the *1203 accused." In Voorhees v....

...desk drawer; and (6) one of Pailing's fingerprints was found on Powell's vehicle. We determine that this was sufficient corroboration to allow Pailing's self-inculpatory, out-of-court statements to come before the jury for consideration pursuant to section 90.804(2)(c), Florida Statutes, [18] and we cannot conclude beyond a reasonable doubt that the trial court's error in excluding Pailing's statements was harmless....

...tutional provision. But I do conclude that there was harmful error during the penalty phase, and I would remand for a new penalty phase. Declarations Against Interest In Voorhees, the trial court ruled that a hearsay statement was inadmissible under section 90.804(2)(c) because the declarant did not "exonerate" the defendant in the hearsay statement....

...efore the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for the objection. Opportunity shall be given to make the objection out of the presence of the jury. [14] The current version of section 90.804(2)(c) is substantively identical to the version in effect at the time that Powell was murdered....

...g on admissibility of statement against interest), and Michael H. Graham, Handbook of Federal Evidence, § 804.3 at 656 n. 19 (4th ed.1996). We decline to change established Florida law on this point. [18] Because we base our determination here upon section 90.804(2)(c), Florida Statutes, we need not reach Carpenter's argument that Pailing's self-inculpatory, out-of-court statements should have been admitted under the principles announced in Chambers v....

...Second, Jones contends that even if Schofield's alleged confessions did not fall within an exception to the hearsay rule they were admissible under due process principles as set forth in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Section 90.804(2), Florida Statutes (1995), provides in pertinent part: (2) HEARSAY EXCEPTIONS.—The following are not excluded under s....

...A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. (Emphasis added.) By its plain language, in order for a statement against penal interest to be admissible, section 90.804(2) requires a showing that the declarant is unavailable as a witness....

...t that burden. Consequently, we find that Schofield's alleged confessions are not admissible under the declaration against penal interest exception to the hearsay rule. [3] Even if Jones had established that Schofield was unavailable for purposes of section 90.804(2)(c), Jones also had the burden of establishing that Schofield's alleged confessions were statements against penal interest within the meaning of section 90.804(2)....

...Having determined that Jones failed to demonstrate that Schofield was unavailable, we need not consider whether Schofield met these additional burdens. Lastly, Jones contends that Schofield's statements must be admitted under Chambers irrespective of the unavailability requirement of section 90.804....

...State, 453 So.2d 17, 21 (Fla.), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984). Of course, unlike Mississippi at the time Chambers was decided, Florida recognizes a declaration against penal interest exception to the hearsay rule. Baker; § 90.804(2)(c), Fla.Stat....

...In Baker, this Court simply extended the common law declaration against interest hearsay exception to cover declarations against penal interest. 336 So.2d at 369. Our decision in Baker was subsequently codified by the legislature in the Florida Evidence Code as section 90.804(2)(c) which includes the unavailability requirement....

...e of the abuse 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 § 90.804(1)....

...Escobars for an alleged traffic violation in April 1988. Both Dennis and Douglas Escobar were sentenced to life in prison in California. [2] Effective October 1, 1990, the legislature deleted from the hearsay exception of statement against interest, section 90.804(2)(c), Florida Statutes (1989), the following provision: 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....

...rsation with Lightbourne. The trial court declined to admit any of the proffered evidence, including Chavers' 1989 affidavit, after finding that none of the hearsay statements fell within any exception to the hearsay rule. Id. On appeal, we examined section 90.804(2)(c), Florida Statutes (1991), [6] the *692 statement against interest hearsay exception, [7] and found no error in the trial court's refusal to admit the hearsay statements into evidence....

...the credibility of his statements. Id. (emphasis added). As in Lightbourne, we find that the hearsay evidence presented in this case does not expose Fields to criminal liability [8] and lacks the requisite indicia of reliability for admission under section 90.804(2)(c), Florida Statutes (1993)....

...y at his resentencing. This issue is without merit. Professor Ehrhardt has written that "[w]hen a witness refuses to testify concerning the subject matter of a hearsay statement in the face of court order to testify, she is `unavailable' pursuant to section 90.804(1)(b)....

...atters that occurred during the first couple of weeks of August of 1985. (Emphasis added.) For this reason, there does not appear to be any "procurement or wrongdoing" on the State's part which would nullify Fields' status as an unavailable witness. § 90.804, Fla....

...uest violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution"). [6] Before a statement can even be considered as a possible exception to the hearsay rule under section 90.804, the declarant must be found unavailable as a witness within the meaning of section 90.804(1). In Lightbourne, Chavers was found in contempt of court and declared unavailable as a witness because, alternatively, he suffered from a lack of memory, section 90.804(1)(c), and he refused to answer questions, section 90.804(1)(b)....

...d that the trial court did not err in finding the statement to be an excited utterance. B. Dying Declaration Exception We now examine whether Destefano's statement was admissible under the dying declaration exception to the hearsay rule. Pursuant to section 90.804(2)(b), Florida Statutes (2007), and this Court's prior rulings, the deceased must have known and "appreciated his condition as being that of an approach to certain and immediate death," although it is not necessary that the declarant "make express utterances" that he would never recover....

...ty to rebut because the State could not question the victim. See id. at 412. In this case, the trial court allowed the introduction of the affidavits only to the extent that the information contained therein related to family history as specified in section 90.804(2)(d), Florida Statutes (2003)....

...[8] Section 921.141(1), Florida Statutes (2003), provides that "[a]ny such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements." [9] Section 90.804(2) contains four hearsay exceptions that apply when the declarant is unavailable as a witness....

...EXCLUSION OF STATEMENTS MADE BY VALESSA ROBINSON TO DETECTIVES Davis next argues that the trial court reversibly erred by not permitting Detective Iverson and Lieutenant Marsicano to testify regarding Valessa Robinson's statements made to them. The assertion is that these statements should have been admitted pursuant to section 90.804(2)(c), Florida Statutes (2002), [7] which is the declaration against interest hearsay exception....

...A similar request was made when Lieutenant Marsicano was called as witness. We agree with the trial court that there was no basis in what was presented to determine whether Detective Iverson or Lieutenant Marsicano could testify as to statements made to them by Valessa Robinson. For statements to be admitted under section 90.804(2)(c), the statements have to meet the requirements of that section....

...h sentence grounded on a bare majority of the jury's vote is unconstitutional; and (9) Florida's death penalty scheme is unconstitutional. [6] The remaining venirepersons challenged by Davis were venirepersons Whitman, Eustace, Junda, and Lopez. [7] Section 90.804, Florida Statutes, provides in pertinent part: (2) HEARSAY EXCEPTIONS.—The following are not excluded under s....

...1739, 72 L.Ed.2d 153 (1982), any discovery violations. Brown was not entitled to a continuance because he obviously knew about Ricky at the time of Dudley's pre-trial statement. The alleged hearsay testimony concerning the family relationship between Brown and Ricky was either admissible under section 90.804(2)(d), Florida Statutes (1981), as a statement of family history by the unavailable declarant Ricky, or was harmless error in light of the compelling evidence of guilt against Brown....

...d that they arrived there around 9 p.m. He also testified to the jury that immediately after the interview during which these statements were made, not only was Davis arrested, but an arrest warrant was immediately prepared for the arrest of Brooks. Section 90.804(2)(c) provides: (2) HEARSAY EXCEPTIONS.—The following are not excluded under s....

...tement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. [6] § 90.804(2)(c), Fla....

...even when they are false; and mere proximity to other, self-inculpatory, statements does not increase the plausibility of the self-exculpatory statements. Williamson, 512 U.S. at 599-600, 114 S.Ct. 2431. Therefore, assuming the other requirements of section 90.804(2)(c) are met, it follows that a nontestifying codefendant or accomplice's confession or inculpatory statement which also implicates the defendant should only be admitted if it "sensibly and fairly can be redacted to include only those statements which are solely self-in-culpatory." Franqui v....

...The majority agrees that the two admitted statements as redacted were self-inculpatory from Davis's perspective. See Majority op. at 777. These two self-inculpatory statements as redacted were against Davis's penal interest; thus, these statements fall under section 90.804(2)(c), Florida Statutes....

...rustworthiness of the statements. See Maugeri v. State, 460 So.2d 975, 977 n. 3 (Fla. 3d DCA 1984) (citing United States v. Riley, 657 F.2d 1377, 1383 (8th Cir.1981)). [7] Rule 804(b)(3) of the Federal Rules of Evidence is the federal counterpart to section 90.804(2)(c) and is practically identical in its content....

...hat "the totality of the circumstances in which ... [the statement or] confession was made makes the statement inherently trustworthy and renders the declarant particularly worthy of belief." Id. at 1319. [14] See Fed. Rule Evid. 804(b)(3). [15] See § 90.804(2)(c), Fla....

...Thus, the jury could have concluded, notwithstanding Hamilton's statement, that Stevens was involved in the murder of the victim. As the state concedes, trial counsel's objection to the introduction of Hamilton's statement would have been sustained under section 90.804(2)(c), Florida Statutes (1979), prohibiting the admission against an accused of confessions and other inculpatory statements of codefendants....

...of the court file in the battery charge against appellant could not be admissible. It seems to me that this written statement meets the test of reliability which is fundamental to hearsay issues. I would allow this handwritten statement pursuant to section 90.804(2)(a), Florida Statutes....

...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. [7] Section 90.804(2)(a) (1997), cited by Justice Wells in his concurrence, provides for the following exception to the hearsay rule: (a) Former testimony.—Testimony given as a witness at another hearing of the same or a different proceeding, or in a de...

...suffered "from an inherent lack of credibility." The circuit court found that due to this lack of credibility, the evidence did not demonstrate the presence of corroborating circumstances showing the trustworthiness of the statements as required by section 90.804(2)(c), Florida Statutes, and did not satisfy the second prong of Jones II. We do not reach the issue of whether the trial judge erred in his consideration of the admissibility of the evidence under section 90.804(2)(c) because we conclude that the evidence did not satisfy the second prong of Jones II. Assuming without deciding that the newly discovered evidence would be admissible pursuant to section 90.804(2)(c), Hitchcock has not demonstrated that the newly discovered evidence would probably produce an acquittal or life sentence on retrial because the witnesses were not convincing....

...Witness Whitaker, who discovered the deputy, testified that he saw a black man wearing red shorts and a white T-shirt running from the scene in a manner similar to men in Vietnam under fire. (William Reaves served in Vietnam.) Witness Hinton was ruled unavailable to testify, [pursuant to] section 90.804(1)(b), Florida Statutes (1991), and his testimony from the 1987 trial was read into the record....

...statement made by Jean Klimeczko concerning Penalver and Ibar's visit to the residence during the weekend of the murders. [7] The State, however, contends the statement was admissible because Klimeczko was an unavailable witness at trial pursuant to section 90.804(1)(c), Florida Statutes (1999). We agree with the State and affirm. Section 90.804(1)(c) provides, in pertinent part, that a witness is unavailable if *1135 the witness "[h]as suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant's effectiveness as a witness during the...

...Witness Whitaker, who discovered the deputy, testified that he saw a black man wearing red shorts and a white T-shirt running from the scene in a manner similar to men in Vietnam under fire. (William Reaves served in Vietnam.) Witness Hinton was ruled unavailable to testify, section 90.804(1)(b), Florida Statutes (1991), and his testimony from the 1987 trial [1] was read into the record....

...s argument that the trial court's ruling was in error. Further, the affidavit in question does not fall under one of the four hearsay exceptions by which the statement of a declarant who is unavailable as a witness may be admitted into evidence. See § 90.804(2), Fla....

...However, we note that the declarant in Crawford was not physically unavailable to testify, but was instead excluded based on a marital privilege exemption. See Crawford, 541 U.S. at 40, 124 S.Ct. 1354. Florida's statutory law and the decisions from other courts offer some guidance on this issue. 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 r...

...e of the abuse 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. Stat. (2007). [4] Section 90.804(1) provides five ways in which a declarant may be unavailable as a witness, including being exempt based on privilege, refusing to testify despite a court order to do so, suffering a lack of memory on the subject matter, unable to be p...

...However, in response, the trial court granted the State's motion in limine to exclude the testimony of Farmer on the basis that the testimony presented conflicting hearsay that was not sufficiently corroborated to satisfy the applicable admissibility predicate under section 90.804(2)(c), Florida Statutes (2005)....

...the correct result in this case is to reinstate our reversal of the convictions and sentences and to remand for a new trial. PARIENTE and PERRY, JJ., concur. NOTES [1] Miranda v. Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [2] Section 90.804(2)(c) reads as follows: A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declaran...

...hat, as a result, the evidence would not probably produce an acquittal on retrial. First, Marek has failed to demonstrate that the testimony about Wigley's statements would be admissible in the guilt phase as a statement against interest pursuant to section 90.804(2)(c), Florida Statutes (2008). Section 90.804(2)(c) provides that where the declarant is unavailable as a witness, there is a hearsay exception for statements against the declarant's interest: Statement against interest....

...Wigley's statements that he killed before or that he strangled the victim were not "so far contrary to the declarant's pecuniary or proprietary interest" that "a person in the declarant's position would not have made the statement unless he or she believed it to be true." § 90.804(2)(c), Fla....

...To permit the use of rule 3.220 depositions as substantive evidence would discourage and chill the use of discovery depositions and would limit the criminal pre-trial discovery process. As noted by Judge Ervin, courts construing the term "deposition" in section 90.804(2)(a) [2] have reached similar conclusions. See, e.g., Rodriguez; Smith v. State, 606 So.2d 641 *760 (Fla. 1st DCA 1992) (substantive use of a deposition taken solely for the purpose of discovery is improper under section 90.804(2)(a)); Clark v. State, 572 So.2d 929 (Fla. 5th DCA 1990) (only depositions taken to perpetuate testimony under rule 3.190(j) are admissible as substantive evidence under section 90.804(2)(a)), quashed in part on different grounds, 614 So.2d 453 (Fla.1993); Jackson v. State, 453 So.2d 456 (Fla. 4th DCA 1984) (deposition taken under 3.220 and not 3.190 not admissible under 90.804(2)(a))....

...ion in this case. Consequently, the decision of the district court of appeal is approved. It is so ordered. GRIMES, C.J., and SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur. NOTES [1] Rule 3.220(h) was previously numbered as rule 3.220(d). [2] Section 90.804(2)(a), Florida Statutes (1993), provides: (2) Hearsay Exceptions....

...they would probably produce an acquittal on retrial. Jones v. State, 591 So.2d 911 (Fla. 1991). At the outset, it must be noted that it is not clear whether these affiants could testify of their conversations with Pruitt in the event of a new trial. Section 90.804(2)(c), Florida Statutes (1993), provides that if a declarant is unavailable, a statement intending to expose him to criminal liability and offered to exculpate the accused is inadmissible "unless corroborating circumstances show the tr...

...enge himself, or divert attention to another." Id. at 545, 106 S.Ct. at 2064. In the instant case, the State contends that Jeffery's taped conversations were properly admitted under the "statement against interest" exception to the hearsay rule. See § 90.804(2)(c), Fla.Stat. (1991). [3] Section 90.804(2)(c) provides that a statement that would subject the declarant to criminal liability is admissible provided that the declarant is unavailable as a witness....

...consider clearly established mitigating factors; (9) prosecutorial misconduct deprived Farina of a fair sentencing hearing; and (10) the prosecutor's attempt to hand-pick a judge deprived Farina of a fair trial. [2] Issues 1, 2, 4, 5, 6, and 10. [3] Section 90.804(2)(c), Florida Statutes (1991), creates an exception to the hearsay rule for statements against interest, provided that the declarant is unavailable as a witness....

...The statement was hearsay and fails to qualify under any hearsay exception. When a codefendant's confession is obtained in a custodial setting, as was the case here, the only hearsay exception that has potential applicability is the "statement against interest" exception. [7] See *1338 § 90.804(2)(c), Fla. Stat. (1995). Section 90.804(2)(c) states: Statement Against Interest....

...issible, unless corroborating circumstances show the trustworthiness of the statement. Of course, for a statement to be admissible as a statement against interest, a trial judge also must find that: (1) the declarant is unavailable as a witness, see § 90.804(1), Fla....

...he police. [5] In fact, at one point during the suppression hearing the trial judge remarked that three of the people displayed in the photopack "could have been the defendant's brother if not the defendant himself." [6] Although Pittman argued that section 90.804(2)(c), Florida Statutes (1989) ("A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement."), a...

...Unavailability shall include a finding by the court that the elderly person's or disabled adult's participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental, or physical harm, in addition to findings pursuant to § 90.804(1)....

...e of the abuse 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 § 90.804(1)....

...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)....

...This provision does not require the court to take judicial notice of Harrison's former testimony in the prosecution of Abshire—the State did not have the same motive to inquire as to Marquard's participation that it would have in Marquard's postconviction evidentiary hearing. Section 90.804(2)(a) is likewise inapplicable as it requires the State to have a similar motive to develop the testimony at issue....

...ifferent proceeding ... if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. § 90.804(2)(a), Fla....

...Appellant contends that the testimony of the two officers who spoke to victim Zore immediately after he was shot failed to establish that Zore's statements were made under a sense of impending death, as required to establish the dying declaration exception to the hearsay rule. *490 § 90.804(2)(b), Fla....

...1983), the trial court's denial of defendant's motion for dismissal of the kidnapping charge was proper. We need not discuss the propriety of the imposed sentence which, under our holding, will be vacated. Accordingly, we reverse the defendant's conviction and remand for a new trial. REVERSED AND REMANDED. NOTES [1] Section 90.804(2)(b), Florida Statutes (1987) establishes the following exception to the general rule excluding hearsay: Statement under belief of impending death....

...but [the appellant]." He further argues that the testimony is not hearsay, but in the alternative, if it is, it should have been admitted under the hearsay exception which allows declarations against penal interest to be introduced in evidence. See § 90.804(2)(c), Fla....

...The appellant has offered no plausible demonstration of a failure to investigate the crime. *21 In the alternative, the appellant argues that if the proffered testimony is hearsay, it should have been admitted as a declaration against penal interest. Section 90.804(2)(c), Florida Statutes (1981), requires that in order to utilize this exception to the hearsay rule, the appellant must demonstrate that the declarant is unavailable to testify as a witness....

...This case does not involve a confession to the specific crime but, rather, a discussion, prior to the crime, about committing a similar crime. There is no corroborating evidence and no assurances whatever of the reliability of the statement. Also, section 90.804(2)(c), Florida Statutes (1981), states: A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement....

...The state objected on the ground that appellant had not followed the procedure for perpetuating testimony, as provided in Florida Rule of Criminal Procedure 3.190(j), and that appellant made no showing that Blackwell was unavailable as a witness under the former-testimony hearsay statute, Section 90.804(2)(a), Florida Statutes (1989)....

...r perpetuating the testimony. Appellant argues that the trial court's ruling excluding such testimony was erroneous in that deposition testimony is admissible under Florida's long-standing rule allowing the admission of former testimony, codified in section 90.804, and that in civil cases Florida's Evidence Code and the rules of civil procedure are considered in pari materia and, if the evidence would be considered admissible pursuant to the provisions of either the statute or the rule, the deposition may be admitted....

...And see Barnett v. State, 444 So.2d 967 (Fla. 1st DCA 1983); Clark v. State, 572 So.2d 929 (Fla. 5th DCA 1990); Campos v. State, 489 So.2d 1238 (Fla. 3d DCA 1986). We acknowledge that the above decisions are at variance with the interpretation placed on section 90.804(2)(a) by a respected commentator in the field of evidence, who states: [T]here is some Florida authority that in a criminal case a deposition must be admissible under the Rules of Criminal Procedure. If those rules do not provide for its admission, the deposition cannot be admitted under section 90.804(2)(a). There appears to be no logical reason to draw this distinction. Depositions should be admissible under section 90.804(2)(a) in both criminal and civil cases....

...reby superseded to the extent they are in conflict with the code." Thus, if procedural rules limiting the use of depositions as evidence are "rules of *645 evidence," as it would appear they would be, the Florida Supreme Court has already ruled that section 90.804(2)(a) controls and the deposition would be admissible....

...Ehrhardt, Florida Evidence § 804.2, at 670-71 (1992 ed.) (footnotes omitted). Although Professor Ehrhardt makes an extremely logical argument, paralleling appellant's position that the criminal rules, like the civil rules, should be read in conjunction with section 90.804(2)(a), this court is required to follow our established case law....

...ppellant's sister. In any event, John Baldwin admitted, at trial, that he stopped by appellant's house the night of the crimes. The state finds no error in the trial court's refusal to admit the statements as statements against interest, pursuant to section 90.804(2)(c), because Baldwin was available for trial and did in fact testify....

...[2] He now argues that the trial court erred in refusing to admit hearsay evidence that Jon told others that he had seen dead bodies before and was the last to see the victims alive which, appellant urges, is a statement against interest within the meaning of section 90.804(2)(c), Florida Statutes (1979)....

...Although the four affidavits Preston presented with his writ of error coram nobis would support his hypothesis that Scott killed Walker, as we stated in Preston III, At best, if [this] newly discovered evidence had been known at trial, it could have been used to impeach Scott Preston and perhaps introduced under section 90.804(2)(c), Florida Statutes (1987)....

...e of the abuse 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 section 90.804(1)....

...First, the out-of-court declarant must be unavailable to testify. Second, the out-of-court declaration must be contrary to the "interests" of the declarant. Brinson v. State, 382 So.2d 322, 324 (Fla. 2d DCA 1979). Brinson has since been superseded by statute. Section 90.804(2)(c), Florida Statutes (1997), modified the ruling in Baker by requiring outside corroborating circumstances indicating the truthfulness of the statement....

...The Supreme Court in Crawford held that where an out-of-court testimonial statement is offered, it must be established that the defendant had the prior opportunity to cross-examine the declarant and that the witness must be shown to be unavailable. Id. at 68, 124 S.Ct. 1354. Section 90.804(2)(a), Florida Statutes (2003), similarly provided that former testimony may be received under certain circumstances, where the declarant is unavailable, as follows: (a) Former testimony.—Testimony given as a witness at another hearin...

...of Rewis. However, this same complaint would appear to apply to anyone who might have read Rewis's testimony, other than Rewis himself. Because Muehleman has not demonstrated that the procedure followed by the trial court violated the provisions of section 90.804, Florida Statutes, or the principles set forth in Crawford, we deny relief on this claim....

...Moreover, because the testimony of A is hearsay within hearsay in that it combines the hearsay statements of both B and C, it is inadmissible unless the hearsay statements of both B and C conform "with an exception to the hearsay rule as provided in s. 90.803 or s. 90.804." § 90.805, Fla. Stat. (1985). The statement of C would be admissible as an exception to the hearsay rule under section 90.804(2)(c), Florida Statutes (1985), because it tends to expose declarant C to criminal liability and exculpate the defendant provided: (1) declarant B was available to testify as a witness or B's hearsay statement to A itself qualified as...

...The proffered testimony of A fails on all counts. First, B was not available to testify. Second, B's hearsay statement of what C told him was not a statement against B's interests and was not otherwise an exception to the hearsay rule under either section 90.803 or 90.804....

...After a medical and psychological evaluation, he was found incompetent to testify. His testimony was deferred, and when he testified three months later, he professed to have a lack of memory and refused to answer questions. Chavers was found in contempt of court and declared unavailable as a witness. Section 90.804 of the Florida Evidence Code [2] provides that when a declarant is unavailable as a witness, hearsay evidence can be admitted only if it qualifies under one of the following four exceptions: (1) former testimony; (2) statement under be...

...ade the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. § 90.804(2)(c), Fla....

...dentiary hearing because defense counsel failed to inform jail personnel of their intent to call him as a witness. In any event, Taylor's letter does not fall within any of the exceptions for hearsay, regardless of his availability. See §§ 90.803, 90.804, Fla. Stat. (1993). Lightbourne argues that Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), controls his case and requires that the evidence be admitted regardless of section 90.804....

...port. We affirm the order denying postconviction relief. It is so ordered. GRIMES, C.J., OVERTON, SHAW, KOGAN and HARDING, JJ., and McDONALD, Senior Justice, concur. NOTES [1] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). [2] § 90.804, Fla....

...After lengthy and thorough consideration, we have determined that this evidence, although uncontestably hearsay, section 90.802, Florida Statutes (1981), was properly admitted as a statement against penal interest under the hearsay exception embodied in section 90.804(2)(c), Florida Statutes (1981), [1] the reception of which did not offend the defendant's right to confrontation under the sixth amendment of the United States Constitution....

...In determining that issue, we generally adopt the test stated in United States v. Riley, 657 F.2d 1377 (8th Cir.1981), cert. denied, 459 U.S. 1111, 103 S.Ct. 742, 74 L.Ed.2d 962 (1983), for the admission of inculpatory statements against penal interest [2] in criminal cases under the federal equivalent to section 90.804(2)(c): [B]efore an inculpatory statement against penal interest is admissible under Rule 804(b)(3), it must be shown that (1) the declarant is unavailable as a witness, (2) the statement must so far tend to subject the declarant to cri...

...1254, 55 *980 L.Ed.2d 774 (1978); United States v. Brainard ; but see United States v. Satterfield, 572 F.2d 687 (9th Cir.1978), cert. denied, 439 U.S. 840, 99 S.Ct. 128, 58 L.Ed.2d 138 (1978). Finally, we reject Maugeri's claims that the final sentence of section 90.804(2)(c) [7] precludes the admission of all inculpatory statements against penal interest....

...State, 426 So.2d 1180 (Fla. 5th DCA 1983). [8] The provision patently does not apply to this case in which the admission of one crime provides the motive for the commission of another. See also Law Revision Council Note — 1976, 6 C Fla. Stat. Ann. § 90.804(2)(c) at 362 (1979)....

...which the inherent likelihood that the declarant is attempting to serve his own interest by implicating someone else has often led to the exclusion of the statement even under the federal rule, which, of course, does not include the last sentence of section 90.804(2)(c)....

...e statements were neither testimonial in nature, under the proscription of Crawford, and therefore did not violate the Confrontation Clause, nor were unreliable, made *1133 under circumstances that would render them untrustworthy in contravention of section 90.804(2)(c), Florida Statutes (2007)....

...We agree that the first part of the statement where Laurencio confessed to Martin to his own involvement in the robbery was admissible as an exception to Florida's hearsay rule, section 90.802, Florida Statutes (2007), as against Laurencio's penal interest. See § 90.804(2)(c), Fla....

...ive negligence. Finally, appellees did not adequately demonstrate unavailability of Ms. Crossin. [1] The trial judge should not have admitted this evidence and we cannot consider the admission of this evidence harmless error. Even though on retrial, Section 90.804(2)(a) may permit the admission of this deposition "If the party against whom the testimony is offered ......

...Masaka agreed with the State that the proffered statements were hearsay; however, he contended that the statements were nevertheless admissible under the exception to the hearsay rule for statements that are against a declarant's penal interest. Specifically, section 90.804(2)(c), Florida Statutes (2005), provides, (c) Statement against interest....

...the gun both before and after the shooting and had at least some intent to commit a robbery that day. Because this evidence tends to support Masaka's defense that Panzo was the shooter, it satisfied the relevance requirement for admissibility under section 90.804(2)(c)....

...ns used in the crime. Even though the codefendant did not admit to being directly involved in the murder itself, the trial court found, and the supreme court implicitly agreed, that the statements were sufficiently incriminating to be admitted under section 90.804(2)(c) because the codefendant's "efforts to destroy evidence connect[ed] him to the crime." Id....

...This was particularly true for Panzo's statements that he had the gun earlier in the day and that he had disposed of it two days later. Like the codefendant's statements in Franqui, Panzo's statements concerning his possession and sale of the gun were sufficiently incriminating to be admissible under section 90.804(2)(c) because Panzo's efforts to dispose of the evidence connected him to the crime....

...As Masaka pointed out to the trial court, each of these statements was incriminatory when considered in context, and the statements as a whole were "certainly enough to get [Panzo] charged," thereby putting Panzo's penal interest into play. Thus, these statements met the "self-inculpatory" requirement for admission under section 90.804(2)(c)....

...Because the trial court's ruling effectively denied Masaka the right to present his defense, it constituted harmful error. F. Conclusion Here, the trial court's ruling excluding the proffered portions of Panzo's statement was based on its erroneous view of the requirements for admissibility under section 90.804(2)(c) and its erroneous assessment of the proffered evidence....

...the girls as to what they should say about the incident. The court also excluded Powell's statements to other people that she had done the shooting. On retrial these declarations, *980 which are statements against penal interest, should be admitted. Section 90.804(2)(c), Florida Statutes....

...e of the abuse 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)....

...paragraph 2. which requires that the child either testify or be unavailable as a witness. Appellant notes that in order to be declared unavailable for purposes of this subparagraph, the child would have to meet the definition of unavailability under section 90.804(1) or the court would have to conclude that the child's participation in the trial would result in "a substantial likelihood of severe emotional or mental harm." We cannot sustain the state's response that the hearing previously conduc...

...unications with the carrier regarding the horsepower of the engine. Although the insured was deceased by the time of trial, the evidence of what he told the carrier was admissible under the declaration against interest exception to the hearsay rule. § 90.804(2)(c), Fla....

...as irrelevant, highly prejudicial and, therefore, inadmissible. Rhodes, 547 So.2d at 1205. The transcript of Fuller's testimony was admissible for two reasons. First, the transcript qualifies under the former testimony exception to the hearsay rule. § 90.804(2)(a), Fla....

...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....

...nstitutional right to confront adverse witnesses; (2) this expanded former-testimony hearsay exception would result in "trial by deposition," thereby precluding the fact-finder from evaluating witness credibility; (3) the amendment simply strips the section 90.804(2)(a) former-testimony exception of its "unavailability" requirement, thereby making the section 90.804 exception obsolete; (4) the amendment is inconsistent with several rules of procedure, thereby causing confusion as to which rule should control; [4] and (5) the expanded hearsay exception will shift expense burdens relating to the int...

...ted, 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)....

...We must all not only continue that effort, but should also discuss and explore methods that will enhance cooperative spirit and action. SHAW, J., concurs. NOTES [1] See Amendments to the Florida Rules of Evidence, No. SC00-607 (Fla. July 13, 2000) (unpublished order). [2] Section 90.804(2)(a), Florida Statutes, provides an exception to the hearsay rule for: Former testimony.—Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the co...

...ing, a predecessor in interest, or a person with a similar interest." [3] A declarant is "unavailable" when he or she does not have to testify due to privilege, refuses to testify, or cannot testify because of a lack of memory; death or illness. See § 90.804(1), Florida Statutes (1999)....

...Rule 32(a)(3) of the Federal Rules of Civil Procedure governs the admissibility of a deposition in the same proceeding in which it was taken. The definition of unavailability is broader in Rule 32(a)(3) [Fla.R.Civ.P. 1.330] than it is in Rule 804(a) of the Federal Rules of Evidence [§ 90.804(a), Fla....

...hat an agency or conspiracy existed. See Tresvant v. State, 396 So.2d 733 (Fla.3d DCA 1981). Second, although Heinz was shown to be unavailable by reason of his absence from the trial and the inability of the plaintiff to procure his attendance, see § 90.804(1)(e), Fla. Stat. (1981), any argument that Heinz's statement comes within the hearsay exception as a statement against interest, see § 90.804(2)(c), is defeated by the lack of showing that when Heinz spoke at the deposition and admitted, among other things, the transfer of the assets, he was aware of a risk of harm to his own pecuniary or penal interests....

...Seaboard Coast Line Railroad Company, 327 So.2d 193 (Fla. 1976). Third, while Heinz's testimony was taken in compliance with the law during a proceeding different from the instant trial, it does not otherwise qualify under the "former testimony" exception to the hearsay rule, see § 90.804(2)(a), since Martha, the party against whom the testimony was being offered at trial, was not present at its taking and had no opportunity or motive to develop Heinz's testimony by direct, cross or redirect examination....

...Based upon the record, the testimony was therefore relevant to the pecuniary-gain aggravator. The trial judge therefore did not abuse his discretion in admitting this testimony. *1073 As his third issue, Lawrence contends that because the State did not show that Sonya Gardner was unavailable pursuant to section 90.804, Florida Statutes (1993), the trial judge erred in allowing the State to read her guilt-phase testimony to the resentencing jury....

...Due to the investigator's failure to obtain the directions offered by Gardner's boyfriend, a subpoena was never issued to Gardner's current location. Based on these facts, we find that the State's efforts to procure Gardner as a witness were not sufficient to establish Gardner's unavailability, as that term is defined by section 90.804(1), Florida Statutes (1993)....

...nstrate a witness's unavailability before introducing her prior testimony is applicable to penalty phase proceedings. Hitchcock v. State, 578 So.2d 685, 690 (Fla.1990), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992). Section 90.804(1)(e) provides that a witness may be declared unavailable if the witness "[i]s absent from the hearing, and the proponent of [the witness's] statement *1077 has been unable to procure [the witness's] attendance or testimony by process or other reasonable means." The former testimony is admissible only if the witness is demonstrated to be unavailable at the later proceeding, and the burden of showing unavailability is on the party who seeks to use the testimony. § 90.804(1), (2)(a), Fla....

...was incorrect or should be changed. Relevance alone is obviously not sufficient to permit admission of the prior statement. As previously noted, a witness's unavailability is an absolute prerequisite to the use of the witness's prior testimony under section 90.804. See Hitchcock, 578 So.2d at 690-91; Ehrhardt, Florida Evidence § 804.1 (1995 ed.) ("If the declarant is available to testify during the trial, evidence of a hearsay statement is not admissible under any of the section 90.804 exceptions even though all the other statutory requirements are met")....

...was irrelevant to this case. If there were more detailed objections to this evidence, we have been unable to find them in the record. On appeal, Grace argues that the admission of these depositions violates Florida Rule of Civil Procedure 1.330 and section 90.804(2)(a), Florida Statutes (1991) because they are hearsay....

...That was my mission in life .... I cut them out, I highlighted them and I put them in plastics. I wanted people to know what I had done and what I had contributed for your children and my children. Garcia urges that Pardo's former sworn testimony was admissible under section 90.804(2)(a), Florida Statutes (1997), which provides an exception to the hearsay rule, when the declarant is unavailable, for: (a) Former testimony.—Testimony given as a witness at another hearing of the same or a different proceeding ......

...court abused its discretion in excluding the evidence. [12] Because Garcia was not tried with Pardo, the State did not have the identical motive in cross-examining Pardo as it would have had if the State tried Pardo and Garcia together. Nonetheless, section 90.804(2)(a) does not require an identical motive but only a "similar motive"....

...Amador say what happened to that deal? *568 A: He didn't want to do it by him himself and it had been scheduled to be done another time. It appears from the record that the trial court allowed these statements into evidence based on the statement against interest exception to the hearsay rule, section 90.804(2)(c), Florida Statutes, which provides: (c) Statement against interest.—A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or proprietary interest or tended to subject the declarant to liab...

...Garcia was acquitted in that case. [11] The severance of the trials of Pardo and Garcia occurred before Pardo's trial, and therefore Garcia was not a codefendant in Pardo's trial. [12] Garcia also argues that the statement should have been admitted under section 90.804(2)(c), governing statements against interest....

...First, appellants say that such testimony was inadmissible hearsay. We disagree. It was conceded by counsel at trial that Sean was unavailable to testify. This testimony of Officer Barker qualified as a declaration against interest of an unavailable witness under Section 90.804(2)(c), Florida Statutes....

...He claims that he was deprived of his constitutional right to confront the witnesses against him because the trial court allowed Miller's former testimony in evidence in lieu of his testifying in person. Happ further maintains that appellate *1100 counsel failed to argue that the trial court's reliance on section 90.804(1)(b), Florida Statutes (1989), was error because that section does not apply in this case....

...to the admission of Miller's former testimony. Trial counsel's objection concerned only the admission of Miller's reason for his unavailability to testify. In fact, trial counsel conceded that the court could find Miller unavailable to testify under section 90.804(1)(b) of the Evidence Code (stating that a witness is unavailable where he or she "[p]ersists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so")....

...Happ asserts the trial court committed fundamental error by admitting Miller's former testimony instead of requiring Miller to testify in person because Happ was deprived of his constitutional right to confront Miller. He further argues that the trial court misapplied section 90.804 and that the trial court should have relied on rule 3.640 of the Rules of Criminal Procedure....

...Even if this argument had been raised on direct appeal, it appears that this Court would have found the claim to be without merit. Appellate counsel cannot be faulted for failing to raise a meritless claim on appeal. See Kokal. As for Happ's second contention, that the trial court misapplied section 90.804 of the Evidence Code, we find that claim to be without merit as well. Section 90.804 states: (1) DEFINITION OF UNAVAILABILITY....

...However, a declarant is not unavailable as a witness if such exemption, refusal, claim of lack of memory, inability to be present, or absence is due to the procurement or wrongdoing of the party who is the proponent of his statement in preventing the witness from attending or testifying. § 90.804, Fla....

...Thus, Miller made it quite clear to the court that he was not going to testify despite the possibility of fines or imprisonment. Under these circumstances, a court order would have been futile. Accordingly, Happ's claim that the trial court misapplied section 90.804 is without merit. See Stano v. State, 473 So.2d 1282, 1286 (Fla. 1985) (holding that trial court did not abuse its discretion in declaring parents of victim unavailable under section 90.804(1)(b) where parents repeatedly refused to testify despite threat of imprisonment or fines)....

...The rule places definite limits on when former testimony may be admitted in a new trial. As Happ argues, the rule does not include within its list of circumstances a finding that the witness is "unavailable" based on a refusal to testify. In this respect, rule 3.640 appears to be stricter than section 90.804 (unavailability) with regard to the admissibility of former testimony. In other words, section 90.804 of the Evidence Code permits the admission of former testimony if the declarant is declared unavailable under one of the enumerated grounds, whereas rule 3.640 limits admissibility to one of the grounds stated therein, none of which includes "unavailable due to refusal to testify." However, we need not decide whether rule 3.640 conflicts with section 90.804 of the Evidence Code because the record in this case supports the trial court's ruling under either provision....

...ate court in Estate of Zaharion v. Security National Bank, supra . [2] If Mrs. Childrey's letter fell within the definition of hearsay, section 90.801(1)(c), Florida Statutes (1979), it would have been admissible as a statement against her interest. § 90.804(2)(c), Fla....

...was "unavailable." As noted by the district court, "unavailability" occurs where the witness "[i]s absent from the hearing, and the proponent of a statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means." Corona, 929 So.2d at 594 (quoting § 90.804(1)(e), Fla....

...However, a declarant is not unavailable as a witness under the statute "if such exemption, refusal, claim of lack of memory, inability to be present, or absence is due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying." § 90.804(1)(e), Fla....

...However, even if proffered testimony can be considered, we find that the error was not harmless because defense counsel could, at trial, introduce the deposition of McBride, in which he admits to having sexual relations with the victim, on the grounds that McBride was unavailable under section 90.804, Florida Statutes (1993)....

...hich sets forth the requirements for perpetuating testimony. These requirements were not met in the present case; therefore, the deposition was inadmissible. The State has argued that Basiliere and James are distinguishable due the recent passage of § 90.804(2)(a) as part of the Florida Evidence Code....

...testimony is now offered,... had an opportunity and similar motive to develop the testimony by direct, cross, or re-direct examination. Even assuming that testimony at a discovery deposition is taken with a "similar motive" as examination at trial, § 90.804(2)(a) cannot be used to justify admission of the deposition....

...The deposition in this case was inadmissible as evidence because it failed to comply with the Rules of Criminal Procedure, not because it was "hearsay." The necessity of meeting the procedural requirements for the taking of depositions is recognized in § 90.804(2)(a), which states that the deposition must be "taken in compliance with law." Although we reverse and remand for a new trial on the first point, we feel that it is appropriate to reach the second point so that it will not be necessary to reargue it if a new trial occurs....

...rong case. The evidence concerning the fingerprints, the blood, and the food stamps was most persuasive. At best, if the newly discovered evidence had been known at trial, it could have been used to impeach Scott Preston and perhaps introduced under section 90.804(2)(c), Florida Statutes (1987)....

...Curtis contends that the trial court deprived him of the right to due process of law by excluding Butler's confession from evidence. This argument is made with an acknowledgment that Butler's confession did not meet the formal requirements of the declaration against penal interest exception to the hearsay rule. Section 90.804(2)(c), Florida Statutes (2001) excludes from the hearsay rule: [a] statement which, at the time of its making, was so far contrary to the declarant's pecuniary or proprietary interest *19 or tended to subject the declarant to liability...

...A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. However, this exception is applicable only when the declarant is unavailable as a witness. See § 90.804(2), Fla....

...It did not help him that Florida generally recognizes an exception for declarations against penal interest, because the exception could not be employed under the facts of his case. Indeed, the Florida courts have consistently applied the constitutional analysis in Chambers, despite the exception in section 90.804(2)(c), Florida Statutes, for declarations against penal interest....

...Butler categorically stated that he was the one who shot Mrs. Stephens. There can be no doubt that this statement was inculpatory. The final part of the test in Chambers, that the witness is available for cross-examination, is the most perplexing. Section 90.804(2) provides that a declaration against penal interest is admissible if the declarant is unavailable....

...Other Florida courts have also concluded that the availability of the declarant does preclude the admission of a third-party confession under constitutional principles. In Czubak v. State, 644 So.2d 93, 95 (Fla. 2d DCA 1994), for example, the court noted that, regardless of the provisions of section 90.804, Chambers "requires the admission of such reliable hearsay statements of witnesses to a third-party confession even if the `confessor' was available as a witness at the trial....

...iable hearsay exception. Richardson v. State, 247 So.2d 296, 300 (Fla.1971) (“A time-honored and universally recognized exception to the hearsay rule is the so-called ‘former testimony5 exceptions.”). 25 By qualifying as former testimony under section 90.804(2)(a), Danford’s and Ward’s testimony is not vulnerable to a Confrontation Clause challenge....

...or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. § 90.804(2)(a), Fla.Stat....

...not the admission of a co-conspirator during the course and in furtherance of the conspiracy. See § 90.803(18)(e), Fla. Stat. (1991). Nor was there any record showing or finding that John Barrett was unavailable to testify at Burnside's trial. See § 90.804(1), Fla....

...hich would have shown that Voorhees admitted to both Pasco County officers and a fellow inmate in Mississippi that Voorhees was the one who slit Bostic's throat. The trial court found this testimony inadmissible in the guilt phase of the trial under section 90.804(2)(c), Florida Statutes (1991), on the basis that these statements did not exonerate Sager but rather tended only to lessen his responsibility....

...Escobars for an alleged traffic violation in April 1988. Both Dennis and Douglas Escobar were sentenced to life in prison in California. [3] Effective October 1, 1990, the legislature deleted from the hearsay exception of statement against interest, section 90.804(2)(c), Florida Statutes (1989), the following provision: 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....

...penal interest. Under the rule, “[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.” Fla. Stat. § 90.804 (2)(c) (1989)....

...e deputy, testified he saw a black man wearing red shorts and a white T-shirt running from the scene in a manner similar to men in Vietnam under fire. (William Reaves served in Vietnam.) Witness Hinton was ruled unavailable to testify, [pursuant to] section 90.804(1)(b), Florida Statutes (1991), and his testimony from the 1987 trial was read into the record....

...Reaves has failed to demonstrate an abuse of discretion by the trial court on either of these issues. Hinton was physically present as a witness for the State but refused to testify at the 1992 retrial and was ruled unavailable to testify pursuant to section 90.804(1)(b), Florida Statutes (1991)....

...(A) Upon motion and hearing in camera and upon a finding that there is a substantial likelihood that the child will suffer at least moderate emotional or mental harm if required to testify in open court or that such child is unavailable as defined in section 90.804(1), Florida Statutes, the trial court may order that the testimony of a child under age 16 who is a victim or witness be taken outside of the courtroom and shown by means of closed circuit television....

...s he believed it to be true. A statement tending to expose the *46 declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. Id. at 57 (quoting § 90.804(2)(c), Fla....

...A non-testifying accomplice's statement against penal interest is admissible as a hearsay exception if corroborating circumstances show the statement has "particularized guarantees of trustworthiness." See Lilly v. Virginia, 527 U.S. 116, 136-37, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); § 90.804(2)(c), Fla....

...ered evidence which would be admissible." Jones, 709 So.2d at 521. The Sanchez-Velasco affidavit would not be admissible during a retrial because it does not meet any of the criteria for admission of a prior statement by an unavailable witness under section 90.804, Florida Statutes (2006)....

...ker v. State, 873 So.2d 270, 282 (Fla. 2004) (quoting Blackwood v. State, 777 So.2d 399, 411 (Fla.2000)). In Parker, this Court affirmed a trial court's decision to exclude contents of an affidavit by a deceased victim that were not admissible under section 90.804, Florida Statutes, on grounds that "the State had no fair opportunity to rebut because the State could not question the victim." Id....

...Neither the state nor the defense disputes that Nelson was not present during any of the above-mentioned conversations. The state predicated the admission of the tape made at Echol's home by treating it as a statement against interest, an exception to hearsay under section 90.804(2)(c), Florida Statutes (1983). [2] The state contended that because Echols refused to testify and had claimed his fifth amendment privilege against self-incrimination, Echols was an unavailable declarant as section 90.804 requires. The state's reliance on section 90.804(2)(c) in support of the tape's introduction into evidence is misplaced. Section 90.804(2)(c), which sets out the requirements for the statement against interest exception expressly states that "[a] statement or confession which is offered against the accused in a criminal action, and which is made by a co-defendant or ot...

...nts are introduced through the testimony of a third party or because the speaker takes the stand and refuses to answer questions concerning the statements. 381 So.2d at 687. As a fallback argument, the state contends that neither the requirements of section 90.804(2)(c) nor the confrontation clause were actually violated because Nelson's name never appears directly on the tape....

...It is so ordered. BOYD, C.J., and ADKINS, OVERTON, McDONALD, EHRLICH, SHAW and BARKETT, JJ., concur. NOTES [1] Although Nelson died in March 1986, we publish this opinion because the discussion of evidentiary problems may have significance in other cases. [2] § 90.804(2)(c), Fla....

...cond trial, [1] was a basis for allowing the State, over McClain's objection, to use Daniel's testimony given at McClain's first trial. [2] We reject the State's contention that these circumstances made Daniel "unavailable as a witness" under either Section 90.804(1)(d) or Section 90.804(1)(e), Florida Statutes (1979)....

...Bell, 500 F.2d 1287 (2d Cir.1974) (witness who had undergone surgery and who would be unable to testify for at least two-and-a-half months could be determined to be unavailable), persuades us that the State's contention is untenable. The State's argument that the witness comes within the definition in Section 90.804(1)(e) fares worse....

...important to our resolution of the issues on this appeal. [2] There is no question here that were the unavailability requirement met, this former testimony would qualify for admission as an exception to the rule making hearsay evidence inadmissible. Section 90.804(2)(a), Florida Statutes (1979), defines former testimony as: "Testimony given as a witness at another hearing of the same or a different proceeding ......

...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....

...The state's brief recognizes this to be the case, as it defends the trial court's ruling by arguing that the witness was, because of her lack of memory, an unavailable witness, thereby making her deposition admissible as substantive evidence pursuant to the "former testimony exception" to the hearsay rule in Section 90.804(2)(a), Florida Statutes (1981)....

...At the trial of that case, the state read the contents of a criminal discovery deposition into evidence when it was determined that the witness was unavailable for trial. On appeal the state argued that introduction of the deposition was proper under the former testimony exception to the hearsay rule in Section 90.804(2)(a)....

...Rejecting this argument, we held that the criminal discovery deposition was inadmissible as substantive evidence because Rule 3.220(d), Florida Rules of Criminal Procedure, limits the use of a criminal discovery deposition at trial solely to impeachment of the witness and that Section 90.804(2)(d) does not justify admission of discovery deposition testimony as substantive evidence contrary *969 to the limited use provisions in Rule 3.220(d)....

...3d DCA 1987) (in analogous circumstances, objection waived when not timely made). As to the second point on appeal, we find no abuse of discretion in the trial court's conclusion that the proffered statements were not statements against penal interest. See § 90.804(2)(c), Fla....

...In support of the JCC's admission of the Glumb transcript, claimant points to Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242 (Fla. 1st DCA 1984), in which we affirmed the trial judge's admission into evidence of two depositions from a prior case because they fell under the former testimony hearsay exception of section 90.804(2)(a), Fla....

...In both the instant case and Johns-Manville the objecting party had sufficient opportunity during the prior proceeding to cross-examine the witnesses whose testimony was sought to be introduced under the exception. As a result, most of the requirements of section 90.804(2)(a) were met. Section 90.804(2)(a), however, also requires that the declarant, whose testimony is sought to be introduced, be unavailable....

litigation context, the trial court’s application of section 90.804 to section 627.7073(l)(c) and the treatment

...ith equally compelling circumstances warranting the exercise of certiorari review. The order on review in this case barred admission of *899 testimony offered under the dying declaration exception to hearsay. More specifically, the trial court found section 90.804(2)(b), Florida Statutes (1989) to be unconstitutional and in violation of the First, Fifth, Sixth and Fourteenth Amendments of the United States Constitution as well as Article I, Sections 3, 9 and 16 of the Florida Constitution....

...th administered in court. Woodcock's case, I Leach, 502. Id. at 638-639, citing Chief Baron Eyre, in Rex v. Woodcock, 1 Leach 500, 168 Eng. Rep. 352 (K.B. 1789). Now codified in the Florida Evidence Code, enacted in 1976, and more specifically, *900 section 90.804(2)(b), Florida Statutes (1989), the dying declaration exception to hearsay, provides in part: (2) Hearsay exceptions....

...n independent proof of guilt is unavailable!" (Page 4, opinion.) Admission of dying declarations is justified on the grounds of public necessity, manifest justice and the sense that impending death makes a false statement by the decedent improbable. Section 90.804, Law Revision Council Note — 1976....

...Campos has filed a statement in this appeal contending that the trial court erred in excluding from evidence the discovery deposition of an unavailable witness. We affirm. While the discovery deposition, taken pursuant to Florida Rule of Criminal Procedure 3.220(d), may have qualified as a hearsay exception under section 90.804(2)(a), Florida Statutes (1983), it was still inadmissible as substantive evidence absent compliance with Florida Rule of Criminal Procedure 3.190(j)....

...s of Criminal Procedure, and not under the auspices of Rule 3.190(j), Florida Rules of Criminal Procedure, which latter rule is for the purpose of perpetuating testimony. We disagree with Jackson's argument that Bac's deposition was admissible under Section 90.804(2)(a), Florida Statutes (1982): (2) Hearsay exceptions....

...The trial court’s discretion is not unfettered, but is “limited by the rules of evidence.” Hudson, 992 So.2d at 107 . Allen asserts that Quintin’s alleged confession to Martin is admissible under the hearsay exception of a statement against penal interest. Section 90.804(2)(c), states: Statement against interest....

...statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. § 90.804(2)(c), Fla. Stat. (2005). This exception only applies when the declarant is unavailable. See § 90.804, Fla....

...is crime. Furthermore, the statute specifically ex- *957 eludes statements tending to expose the declarant to criminal liability and offered to exculpate the accused “unless corroborating circumstances show the trustworthiness of the statement.” Section 90.804(2)(c), Fla....

...McDonald confessed); see generally McWatters, 36 So.3d at 639 n. 8 (“Because the cases are not factually or procedurally similar and Chambers was expressly limited to its facts, McWatters has failed to establish a due process violation.”); *958 § 90.804(2)(c), Fla....

...Although the cases cited by appellant in support of admissibility of the letter are on point, we find the letter was properly excluded on hearsay grounds due to the lack *796 of "corroborating circumstances [which] show the trustworthiness of the statement." § 90.804(2)(c), Fla....

...ing given the above unsworn statement, was deposed in this case but refused to testify on grounds of self incrimination. It is undisputed that he was unavailable at trial, Peninsular having been unable to procure his attendance within the meaning of Section 90.804(1)(e), Florida Statutes (1981). Peninsular contends that the trial court erred in refusing to allow into evidence the statement of Singleton as a declaration against interest of an unavailable witness under Section 90.804(2)(c), Florida Statutes, which provides in pertinent part: (2) Hearsay Exceptions....

...A.L.R.3d annotation, supra, indicate. I do not feel that the two Florida cases cited would serve as authority for review in this case. ON MOTION FOR REHEARING NIMMONS, Judge. Appellant's motion for rehearing suggests that we failed to properly apply Section 90.804(2)(c), Florida Statutes, regarding declarations against interest....

...We reject this argument because Looney was decided on other grounds prior to Crawford, and, thus, did not address the dispositive issue here regarding whether the statements were testimonial in nature subjecting them to the Confrontation Clause. Appellant next argues that Miller's statements were not admissible under section 90.804(2)(c), Florida Statutes (2009) as statements against interest, and contends that this case is distinguishable from Machado....

...Defendant's reliance on Brooks v. State, 787 So.2d 765, 775 (Fla.2001) is misplaced. In Brooks, the trial court allowed the admission of a co-defendant's statements to an investigator prior to his arrest under the hearsay exception "statement against interest" pursuant to section 90.804(2)(c)....

...s of trustworthiness.'" 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....

...here is a reasonable probability that the results of the proceeding would have been different but for the inadequate performance). Because we find that no Crawford violation occurred and that trial counsel's objections properly preserved Appellant's section 90.804(2)(c) argument for appellate purposes, trial counsel's performance was not deficient on those grounds. Furthermore, because we conclude that the trial court properly admitted the statements under section 90.804(2)(c), and properly found 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)....

...We find that none of the issues raised by Colina have merit. In his first two claims, Colina asserts that his right to confront witnesses against him was violated when the trial judge allowed the State to read Castro's testimony from the first trial to the jury. Pertinent to this claim is section 90.804(1)(b), Florida Statutes (1989), which defines "unavailability as a witness" as meaning that the declarant "[p]ersists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so." Colina...

...e testimony was admissible. The testimony was taken in the course of a judicial proceeding in which Colina was a party, and the record clearly establishes that there was a substantial reason why the original witness was not available, as required by section 90.804, Florida Statutes (1989)....

...445, 126 L.Ed.2d 378 (1993); Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242 (Fla. 1st DCA 1984), review denied, 467 So.2d 999 (Fla. 1985). We find that Colina had a full opportunity to confront this witness in the first trial and that the trial judge properly applied section 90.804 in declaring Castro unavailable....

...During Czubak's first trial, the defense proffered Ragsdale as a witness. The proffer established that Ragsdale would invoke his Fifth Amendment rights and refuse to answer questions. The trial judge in that first trial then declared Ragsdale "unavailable" as a witness under section 90.804, Florida *95 Statutes (1987), and Czubak was allowed, pursuant to section 90.804(2)(c), to call the witnesses to Ragsdale's purported "confessions" relating to the murder of Mrs....

...The evidence in Czubak's case amply supports the findings of the trial judge that the proffered witness statements were, contrary to the finding in Chambers, unreliable. Had the trial judge not made such a finding of unreliability, we would conclude, regardless of the provisions of section 90.804, that Chambers requires the admission of such reliable hearsay statements of witnesses to a third party confession even if the "confessor" was available as a witness at the trial....

...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....

...ecause the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present."). [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....

...Unavailability shall include a finding by the court that the elderly person's or disabled adult's participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental, or physical harm, in addition to findings pursuant to s. 90.804(1)....

...e of the abuse 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)....

...y shall include a finding by the court that the elderly person's or disabled adult's participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental, or physical harm, in addition to findings pursuant to s. 90.804(1)." [10] Craig involved testimony by closed-circuit television, outside the presence of the defendant....

...This case does not require us to decide whether the state may introduce one admission against interest in order to establish a corpus delicti when all of the admissions made by the defendant would, if fact, constitute a confession. In the case at bar there was no confession. It should be noted that section 90.804(2)(c), Florida Statutes (1989) specifically permits the introduction of out-of-court statements against interest....

...She stated that she did not remember *178 the events. Id. The court held that she was unavailable as a witness because of her lack of memory, and that her hearsay statements were admissible only if other corroborative evidence was presented. Id. at 1183. The court referenced section 90.804(1)(c), Florida Statutes, which states that a witness is unavailable if he "[h]as suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant's effectiveness as a witness during the trial." Similarly in this case, E.O. was unavailable under section 90.804(1)(b), Florida Statutes, which states that a witness is unavailable if he or she "[p]ersists in refusing to testify concerning the subject-matter of the declarant's statement despite an order of the court to do so." E.O....

...rom her, with the rear of the car facing her. After he left, she saw Clark go to the rear door on the driver's side, reach in, and open the front door. She saw him grab something off the seat, and leave. But she did not see what he took. Pursuant to section 90.804(2)(a), Florida Statutes (1987), the state then proffered a discovery deposition given by Knight....

...tive evidence, and they may be used only as the rule provides, to contradict or impeach the deponent's testimony. State v. Basiliere, 353 So.2d 820 (Fla. 1977); James v. State, 400 So.2d 571 (Fla. 5th DCA 1980), affirmed, 402 So.2d 1169 (Fla. 1981). Section 90.804(2)(a) of the evidence code does not change this rule in criminal cases....

...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. Stat. (2002). The perpetrator's alleged statement was not admissible under section 90.804(2)(c), Florida Statutes, for the same reason. § 90.804(1), Fla....

...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). [2] By contrast, the hearsay exception set forth in section 90.804, Florida Statutes, may only be invoked where the declarant is unavailable as a witness.

...e of the abuse 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)....

...A child is unavailable if the court finds based on expert testimony that a substantial likelihood exists that the child will suffer severe emotional or mental harm if the child testifies or if the child falls within the definitions for unavailability set forth in section 90.804(1)....

...In 2005, the Legislature abolished the "Deadman's Statute," repealing section 90.602, Florida Statutes, which pertained to testimony of interested persons regarding oral communication with a deceased or mentally incompetent person. See ch. 2005-46, § 1, Laws of Fla. In its stead, the Legislature created section 90.804(2)(e), Florida Statutes (2005), which added an exception to the hearsay rule to permit relevant communications of deceased or incompetent persons to be heard by the trier of fact....

...(3) For the purpose of this section, a "mentally incompetent person" is one who because of mental illness, mental retardation, senility, excessive use of drugs or alcohol, or other mental incapacity, is incapable of either managing his or her property or caring for himself or herself, or both. *764 Chapter 2005-46, § 2: 90.804 Hearsay exceptions; declarant unavailable (1) [No Change] (2) HEARSAY EXCEPTIONS.—The following are not excluded under s....

...emotional conditions, including chemical abuse, and limited only to actions performed in accordance with part I of chapter 464. (b)-(c) [No Change] (2)-(3) [No Change] NOTES [1] See Fla. R. Jud. Admin. 2.140(b). [2] The hearsay exception created by section 90.804(2)(e), Florida Statutes (2005), applies "[i]n an action or proceeding brought against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against a trustee of a trust created by a...

...the armed robbery charge. The defendant then filed a timely direct appeal to this court. We conclude that Tipton's extrajudicial statement to the investigators was hearsay and that it should not have been admitted in evidence against the defendant. Section 90.804(2)(c), Florida Statutes, creates an exception to the hearsay rule for statements against penal interest, but Tipton's statement does not meet the requirements for the use of this exception....

...statement was trustworthy. In determining whether a reasonable person would have believed the declarant's statement to be true, we must consider the circumstances existing at the time the statement was made, as well as the content of the statement. Section 90.804(2)(c), Florida Statutes allows the admission of a hearsay statement only if the statement was contrary to the declarant's interest "at the time of its making." *1168 The theory underlying this exception to the hearsay rule is that peop...

...Consequently, we cannot say with any confidence that a reasonable person in his position would have thought that the statement was true. The applicability of the exception for a statement against penal interest also depends on the content of the incriminating declaration. Section 90.804(2)(c) uses the term "statement" in a narrow sense to refer to a specific declaration or remark incriminating the speaker and not more broadly to refer to the entire narrative portion of the speaker's confession....

...indicia of reliability. The statement was offered into evidence as a declaration against penal interest, but as the Florida Supreme Court held in Franqui v. State, 699 So.2d 1312, 1319 (Fla. 1997), the declaration against penal interest exception in section 90.804(2)(c) is not a "firmly rooted" exception to the hearsay rule....

...Moreover, there is no evidence to suggest that the declarant was believable. To the contrary, the declarant conceded that he was willing to lie under oath to serve his own interests. Although the admission of Tipton's statement violated the Confrontation Clause of the Sixth Amendment, as well as section 90.804(2)(c) of the Florida Evidence Code, we are convinced beyond a reasonable doubt that the improper admission of the statement was harmless....

...I mean, it was like he had no feeling about it. The State contends in this proceeding (Doc. 7, page 19) that Barrett's incriminating statement to Campbell was admissible as a declaration against penal interest, one of the exceptions to the hearsay rule recognized by Florida Statute § 90.804(2)(c) (1990): 90.804 Hearsay exceptions; declarant unavailable....

...s not the admission of a co-conspirator during the course and in furtherance of the conspiracy. See § 90.803(18)(e), Fla.Stat. (1991). Nor was there any record showing or finding that John Barrett was unavailable to testify at Burnside's trial. See § 90.804(1), Fla.Stat....

...There was no showing on the record in Petitioner's trial— in fact, there was no discussion of the subject at all— that Barrett was then "unavailable" as a witness, and unavailability is one of the expressed prerequisites to the admission in evidence of statements against penal interest. [18] See Fla. Stat. § 90.804(2) (1991); see also, Fed.R.Evid....

...The existence of a testimonial privilege, including the Fifth Amendment privilege against self incrimination, is one of the forms of unavailability recognized by the rule if the declarant "is exempted by a ruling of the court" on that ground. See Fla. Stat. § 90.804(1)(a) (1991); see also, Fed.R.Evid....

...However, in the present case we believe the circuit court was justified in rejecting the evidence submitted along with Comfort's motion. Unlike Norris the victim's "affidavit" is unsigned. Other witness affidavits, from persons who purportedly overheard the victim recant her statements, are not shown to be admissible under section 90.804(2)(c), Florida Statutes (1991)....

...ted Bailey of first-degree murder. Several months later in a pretrial ruling before Gates's trial, the trial court ruled that Sandy Brackett's testimony was admissible in Gates's trial under the hearsay exception for statements against interest. See § 90.804(2)(c), Fla....

...e conversation in which a nontestifying codefendant implicated himself and the defendant in the robbery. The State argues that this hearsay statement was properly admitted as a statement against penal interest under the hearsay exception codified in Section 90.804(2)(c), Florida Statutes (1993)....

...Specifically, he maintains that (1) the admission at the administrative hearing of testimony given by a witness against him in his federal criminal trial was error, since that testimony was hearsay which did not meet the requirements of the hearsay exception for former testimony in Section 90.804(2)(a), Florida Statutes (1983), and (2) the admission of petitioner's own criminal trial testimony was error because that testimony also constituted hearsay....

...The county candidly conceded this at oral argument. The sole remaining inquiry is whether the evidence would be admissible over objection in a civil trial, or, stated otherwise, whether the evidence satisfies the requirements of the hearsay exception for former testimony in Section 90.804(2)(a), Florida Statutes (1983). We hold that it does not because the county failed to prove, as required, that the declarant was in fact unavailable. Section 90.804, Florida Statutes (1983) provides a list of exceptions which permit use of hearsay testimony where the declarant is unavailable. Subsection (1) of that statute defines unavailability. The pertinent provision, Section 90.804(1)(e), permits a finding of unavailability where the declarant "[i]s absent from the hearing, and the proponent of his statement has been unable to procure his attendance or testimony by process or other reasonable means." The county d...

...Denny argues the evidentiary purpose of admitting these separate pretrial statements made by the codefendants would tend to show his lesser involvement in the murder. These statements were offered by Denny as being a hearsay exception, i.e., a statement against interest. [1] Section 90.804(2)(c) of the Florida Statutes provides in pertinent part that "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustw...

...610, 70 L.Ed.2d 598 (1981). Under these facts, we find the trial court did not abuse its discretion in this evidentiary ruling. Accordingly, the convictions and sentences in this case are affirmed. STONE, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur. NOTES [1] Section 90.804(2)(c), Florida Statutes (1987), reads in relevant part: (2) HEARSAY EXCEPTIONS....

...Hearsay evidence alone cannot support an order revoking probation. Johnson v. State, 378 So.2d 108 (Fla. 5th DCA 1980). The state argues that Burns's testimony as to the confession of Gary Walker, implicating the appellant, is a hearsay exception under section 90.804(2)(c), Florida Statutes (1982), on the basis that it constitutes a statement against interest, and therefore it alone could justify the order of revocation....

...available and there is " other corroborative evidence of the abuse or offense. " State v. Townsend, 635 So.2d 949, 957 (Fla.1994); § 90.802(23)(a)2., Fla. Stat. (2000) (italics supplied). 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....

...“A trial court’s ruling on the admission of evidence is reviewed by an appellate court under an abuse of discretion standard.” Troy v. State, 948 So. 2d 635, 650 (Fla. 2006) (citation omitted). Florida law allows the admission of a statement made under the belief of impending death as a hearsay exception. § 90.804(2)(b), Fla....

...t given by Robert *325 Brown, it cannot be said that the trial court's ruling constitutes harmless error. Accordingly, we REVERSE and REMAND with instructions to grant appellant a new trial. RYDER and DANAHY, JJ., concur. NOTES [1] We are aware that Section 90.804(2)(c), Florida Statutes (1977), currently modifies the ruling in Baker v....

...Admission of Former Testimony Partin argues that the trial court erred in admitting the testimony of DNA analyst Suzanna Ulery from Partin’s first trial. More specifically, Partin argues that Ulery was not “unavailable” for purposes of the former testimony hearsay exception. See § 90.804(2), Fla....

...existing physical or mental illness or infirmity”; and (2) the inability to testify is not “due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.” § 90.804(1), Fla....

...The trial court further observed that flying would be the easiest and most effective means of travel from California to Florida, and it found that even those means were unavailable to Ulery. Furthermore, because the trial court determined that Ulery was unavailable under section 90.804 and that Partin had an opportunity to cross-examine her in a prior trial on the same subject matter, Partin was not deprived of his Sixth Amendment right to confrontation....

...nation.”); Muehleman, 3 So.3d at 1163-64 (allowing an unavailable witness’s testimony from a prior trial); Murray v. State, 3 So.3d 1108, 1124 (Fla.2009) (same). And even if the trial court erred in finding that Ulery was “unavailable” under section 90.804(l)(d), any violation of the Confrontation Clause was harmless because the testimony was ultimately cumulative....

...He argues that the trial court erred in allowing into evidence the deceased victim's testimony from Mr. Thompson's adversarial preliminary hearing. We affirm. Because the victim was unavailable for trial, his preliminary hearing testimony was admissible as former testimony under section 90.804(2)(a), Florida Statutes (2006)....

..."Unavailability" is similarly defined under Florida's hearsay statutes to include a declarant (e.g. A.C.) who: [i]s absent from the hearing, and the proponent of the statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means. § 90.804(1)(e), Fla....

...as very sorry. Unfortunately, Freddie Daniels died just a few days after making this statement. The defense sought to admit these statements of "exoneration." Neither, however, could be considered within the limited exception for dying declarations. Section 90.804(2)(b) establishes a "dying declaration" exception to the general rule excluding hearsay: Statement under belief of impending death....

...United States v. Snyder, 872 F.2d 1351 (7th Cir.1989). As a consequence, a violation of the defendant's Sixth Amendment right can be overcome if the statements contain adequate "indicia of reliability." In addition, the witnesses' statements here qualified, under section 90.804, Florida Statutes (1989), as an exception to the hearsay rule authorizing the use of former testimony....

...STONE, Chief Judge. We affirm Appellant's conviction on counts of attempted second-degree murder and aggravated battery. At trial, Appellant sought to introduce a co-defendant's sworn taped statement, under the hearsay exception for statements against interest. § 90.804(2)(c), Fla....

...bjected, during or after the jury instructions, to the court's failure to instruct the jury on the charge of attempted manslaughter. We reject Appellant's assertion that the co-defendant's statement is admissible as an exception to the hearsay rule. Section 90.804(2)(c), Florida Statutes, provides: (c) Statement against interest.-A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or propriety interest or tended to subject the declarant to liability or...

...ccused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. This court has previously recognized the requirements for admitting a co-defendant's pre-trial statement as a statement against interest under sec. 90.804(2)(c) in Perry v....

...terest." Id. at 1200. In fact, section 90.803(18) contains no requirement that the admission be "against interest." See also Ehrhardt, Florida Evidence § 803.18 (1996 Edition). Statements against interest are admissible under a different provision, section 90.804(2)(c).

...In Crawford , the United States Supreme Court held that testimonial statements of a witness who did not appear at trial would not be admissible unless that witness was unavailable and the defendant *735 had a prior meaningful opportunity for cross-examination. Crawford, 541 U.S. at 68 , 124 S.Ct. 1354 ; see § 90.804(2)(a), Fla....

...Federal Rule of Evidence 804(b)(6) makes admissible "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." (emphasis added). The only relevant provision in Florida's Evidence Code states in section 90.804(1), Florida Statutes, that a declarant is not unavailable for purposes of the unavailable witness hearsay exception, when the declarant's unavailability is "due to the procurement or wrongdoing of the party who is the proponent of his...

...State, 25 So.3d 49, 51-52 (Fla. 1st DCA 2009). Section 90.802 plainly provides, “Except as provided by statute, hearsay evidence is inadmissible.” This means that the only exceptions to the hearsay rule in Florida are the ones recognized by statutes such as sections 90.803, 90.804, and 90.805, Florida Statutes (2010)....

...(2010). Because no statutory exception operated to authorize the admission of Joseph’s prior statement in evidence, the testimony was inadmissible at trial. However, in 2012, the legislature codified the doctrine of forfeiture by wrongdoing by enacting section 90.804(2)(f) which provides: (2) The following are not excluded under s....

...de-clarant’s unavailability. — A state *103 ment offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result. Ch. 2012-152, Laws of Florida. Section 90.804(2)(f) became effective in April, 2012. If section 90.804(2)(f) is applied at a retrial, Joseph’s testimony from the earlier bond hearing would be admissible. Because section 90.804(2)© is a procedural statute, it would apply to a retrial if we were to reverse this case....

...lter ‘substantial personal rights;”’ the crime with which the defendant was charged, the punishment prescribed for it, and “the quantity or the degree of proof necessary to establish his guilt, all remained] unaffected by” the enactment of section 90.804(2)(f)....

...as amendments to the Florida Evidence Code. See, e.g., In re Amendments to the Fla. Evidence Code, 782 So.2d 339 (Fla.2000)[.] Crumbley v. State, 876 So.2d 599, 602-03 (Fla. 5th DCA 2004). For the purpose of article V, section 2(a), we conclude that section 90.804(2)(f) is a procedural statute....

...�� McLean, 854 So.2d at 803 n. 7. “[Statutes are presumed constitutional and given effect until they are declared unconstitutional.” Mallory v. State, 866 So.2d 127, 128 (Fla. 4th DCA 2004). It is almost certain that our Supreme Court will adopt section 90.804(2)(f)....

...Such an order is permissible only upon motion and after an in camera hearing has persuaded the judge that "there is a substantial likelihood that the child will suffer at least moderate emotional or mental harm if required to testify in open court or that such victim or witness is unavailable as defined in section 90.804(1)." § 92.54(1), Fla....

...scretion, and we review its interpretation of those authorities de novo. Id. Generally, the hearsay exception for a “statement against interest” applies when two elements are met: first, the threshold finding of the declarant’s unavailability, section 90.804(l)(e), Florida Statutes (2011); and second, that the content of statement is against the declarant’s interest, section 90.804(2)(c), Florida Statutes (2011). When the statement tends to expose the declarant to criminal liability and is offered to exculpate the accused, a third element must be met: “corroborating circumstances showing] the trustworthiness of the statement.” § 90.804(2)(c)....

...“so far contrary to the de-clarant’s pecuniary or proprietary interest or tended to subject the declarant to liability ... that a person in the declarant’s position would not have made the statement unless he or she believed it to be true.” § 90.804(2)(c), Fla....

...he victim. Id. The State made a pretrial motion to exclude evidence about Butler's earlier confession. Id. The State argued that Butler's confession was not admissible as a statement against interest because Butler was available to testify. Id.; see § 90.804(2)(c), Fla....

...establish that there is a "substantial likelihood" that Andrea "will suffer at least moderate emotional or mental harm due to the presence of the defendant" if she "is required to testify in open court," or that Andrea is unavailable, as defined by section 90.804(1), Florida Statutes (2007)....

...substantial likelihood that the child ... will suffer at least moderate emotional or mental harm due to the presence of the defendant if the child ... is required to testify in open court, or that such victim or witness is unavailable as defined in s. 90.804(1), the trial court may order that the testimony of a child under the age of 16 ......

...Rather, the defendant contends that the children would suffer "harm" if returned to the victim upon entering the United States, as required by the family court custody order. Therefore, section 92.54 does not apply. We also find that, contrary to the defendant's assertion, the minor children are not unavailable as defined by section 90.804(1), because the minor children's inability to be present "is due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying." Section 90.804(1) provides: (1) DEFINITION OF UNAVAILABILITY.—"Unavailability as a witness" means that the declarant: (a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant's...

...Although we conclude that section 92.54 does not apply in the instant case because the defendant does not allege that his minor children will suffer at least moderate emotional or mental harm if they are required to testify in open court due to the defendant's presence, and the children are not "unavailable" pursuant to section 90.804 due to the defendant's own actions, we have also looked to Florida Rule of Criminal Procedure 3.190(j)....

...l to the United States. Based on the record before us, the defendant is the only person hampering the children's return to the United States. The defendant, who has ignored and continues to ignore the family court custody order, may not, pursuant to section 90.804(1) and rule 3.190(j)(6), be permitted to profit from his contemptuous behavior....

...In the instant case, unlike in Harrell, the Confrontation Clause is not at issue because the defendant alleged in his motion that the minor children would testify in his favor. [3] It is interesting to note that the definition of "unavailability" in section 90.804(1) is similar to the language used in rule 3.190(j)(6).

...9.140(c)(1)(C) (permitting the State to appeal orders granting a new trial). Prior to the start of Rolon’s second trial, he moved in limine to prevent the State from using his testimony from the first trial during its case-in-chief in the second trial. Rolon conceded that section 90.804(2)(a), Florida Statutes (2008), would generally permit the State to introduce his former testimony at his second trial....

...Servs., 520 So.2d 69 (Fla. 1st DCA 1988); Harris v. Game & Fresh Water Fish Comm'n, 495 So.2d 806 (Fla. 1st DCA 1986). Although appellant contends that the deposition could not be admitted without a showing that S.L. was "unavailable" within the meaning of Section 90.804(1), Florida Statutes (1987), [4] the deposition was clearly admissible, because the circumstances fell within the ambit of Rule 1.330(a)(3)(B) of the Florida Rules of Civil Procedure....

...tained in a manner inconsistent with sections 415.501-.514. § 415.504(4)(d)2, Fla. Stat. (1987). Expunction in unfounded cases was required within one year and within seven years for indicated reports. § 415.504(4)(c), Fla. Stat. (1987). [4] Under section 90.804(1), "unavailability" means that the declarant is exempted on the ground of privilege from testifying; persists in refusing to testify; suffered a lack of memory; is unable to be present or to testify because of death, illness or infirm...

...The defense sought to put on the testimony of Donald Gibson (Mr. Ahlgren's friend of 25 years) and Maegen DeWolfe (the defendant's daughter), that Mr. Ahlgren had confessed to stealing the air conditioners from the empty house. [2] Conceding the confession was hearsay, appellant relies, here as below, on section 90.804(2)(c), the declaration-against-penal-interest exception to the rule excluding hearsay: (2) The following are not excluded under s....

...statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. § 90.804(2)(c), Fla....

...Stat. (2010). Mr. Ahlgren's unavailability was not at issue: He had died by the time of trial. His confession to theft was, moreover, plainly against his penal interest. But the trial court ruled the hearsay statements did not meet the criteria of section 90.804(2)(c), in that corroborating circumstances did not show the statements to be trustworthy....

...Both the State and Leighty attempted to subpoena Nieves to testify at trial, but were unsuccessful. Leighty filed a motion asking to use Nieves' deposition testimony in lieu of live testimony on a theory that she was Unavailable and her deposition testimony qualified as a hearsay exception as former testimony under section 90.804(2)(a), Florida Statutes....

...Leighty also conceded the supreme court has held in Rodriguez v. State, 609 So.2d 493 (Fla.1992), that a deposition that fails to comply with rule 3.190(j) is not admissible at trial as substantive evidence, despite the exception for hearsay allowed by section 90.804(2)(a), Florida Statutes....

...tions. In Rodriguez, it was the defendant attempting to use deposition testimony as exculpatory evidence. The supreme court framed the issue as: "We are presented with the question of whether a deposition is admissible as substantive evidence, under section 90.804(2)(a) of the evidence code, when, at the time of its taking, opposing counsel is not alerted by compliance with Rule of Criminal Procedure 3.190(j) that the deposition may be used at trial....

...Amendment right to trial discussed in Chambers will sometimes override the holding of Rodriguez. Moreover, the court could find only six cases which discuss Chambers in the context of Florida's hearsay exception for statements against interest under section 90.804(2)(c)....

...At his trial, Butler repudiated the confession and the jury apparently believed him and acquitted him. Curtis attempted to admit into evidence at his trial the confession of Butler. The trial court would not allow it because it did not qualify as an admission against penal interest under section 90.804(2)(c), Florida Statutes, since Butler was available to testify at Curtis's trial after being acquitted....

...During the guilt phase of Garcia's trial, Garcia attempted to admit into evidence Pardo's former testimony during Pardo's trial to prove that he had nothing to do with the murders. Garcia argued to the trial court that Pardo's *492 former sworn testimony was admissible under section 90.804(2)(a), Florida Statutes, as a former testimony exception to hearsay....

...The trial court denied admission of the former testimony because Pardo and Garcia were not tried together, so the State did not have the same motive in cross-examining Pardo that it would have if Garcia had been tried at the same time. The supreme court concluded that "section 90.804(2)(a) does not require an identical motive [for cross-examination], but only a `similar motive'." Garcia, 816 So.2d at 564....

...being present, Leighty has argued that her deposition testimony qualifies for the former testimony exception to hearsay because the state had "had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." § 90.804(2)(a), Fla....

...FARMER, J., dissents with opinion. *495 FARMER, J., dissenting. I think Chambers [8] trumps rule 3.190(j). At least it ought to. Indeed, the Florida Supreme Court thinks that Chambers trumps some contrary state law. See Garcia v. State, 816 So.2d 554, 565 (Fla.2002) (saying that § 90.804(2)(a) may not be applied "mechanistically to defeat the ends of justice," quoting Chambers )....

...case was not reached on the calendar. Here the excluded evidence is a witness exonerating defendant of the shooting by evidence originating from a co-defendant admitting that he alone shot the victims. I see no problem in meeting the requirements of section 90.804(2)(a)....

...hearing. 2 The standard of review of a trial court’s ruling on the admission of evidence is abuse of discretion. However, the court’s exercise of its discretion is limited by the rules of evidence. Hudson v. State, 992 So.2d 96, 107 (Fla.2008). Section 90.804(2)(a), Florida Statutes (2007) provides that so long as the declarant is unavailable to testify, his/her testimony will not be excluded if it is: (a) Former testimony....

...stified at trial.” Id. at 918 . The State argues that it likewise lacked “an opportunity for proper cross that would have been available had [the witness] testified at trial.” We reject the application of Naz-worth to this case. We do not read Section 90.804(2)(a) to require that, in order for prior testimony to be admitted as an exception to the hearsay rule, the opponent of the evidence must have the same motivation to examine the witness in both the prior proceeding and the one in which the prior testimony was being introduced....

...Nor, as the State suggests, must the scope of inquiry conducted at the bond hearing be the same as the scope of the examination at trial. Garcia, 816 So.2d 554 . To require such a high standard would render this hearsay exception useless. There appear to be no Florida cases addressing the applicability of section 90.804(2)(a) where the prior testimony was provided at a bond hearing....

...en the exculpatory nature of Limato’s testimony. See Garcia, 816 So.2d at 565 ; O’Neal, 54 F.Supp.2d at 698-99 . Under the circumstances of this case, we hold that the trial court erred in concluding that Limato’s testimony did not fall within section 90.804(2)(a)....

...e of the abuse 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)....

...ial likelihood of severe emotional or mental harm ..." because the trial judge made no such finding. However, the statute also states the hearsay statements may be admissible if the child is "unavailable as a witness." And, this permits reference to section 90.804. State v. Townsend, 635 So.2d 949 (Fla.1994). Section 90.804(1) allows admission of hearsay if the declarant is "unavailable" due to specified reasons, two of which are that the witness: (b) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an ord...

...5th DCA 2000). [2] (1) Definition of unavailability.—"Unavailability as a witness" means that the declarant: * * * (b) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so . . . § 90.804(1)(b), Fla....

...and make corrections, in both the form and substance, to his testimony. Although this rule is silent as to the use of the errata sheet, Rule 1.330(a) permits deposition testimony to be used at trial under circumstances present in this case. Further, section 90.804(2)(a), Florida Statutes (1989), provides a hearsay exception for deposition testimony, if the party against whom the deposition testimony is offered had an opportunity *262 to develop the testimony by direct, cross, or redirect examination....

...h was inconsistent with Jones' hypothesis of an accidental shooting. We find that Jones' motion for judgment of acquittal was appropriately denied. Dying Declarations "Dying declarations" are admissible as exceptions to the rule against hearsay. See § 90.804(2)(b) (2009)....

...m the evidence."). We affirm the denial of relief on this claim. IV. INEFFECTIVENESS AS TO CODEFENDANT'S CONFESSION In Davis's fourth claim, he alleges that counsel was ineffective for failing to introduce Valessa Robinson's statement at trial under section 90.804, Florida Statutes (1999)....

...not testify if subpoenaed or, if she did, her testimony would be harmful to Davis. The postconviction court also noted that Traina stated that he could not have admitted Valessa's statement because Traina did not have the corroborating evidence that section 90.804(2)(c) required. See § 90.804(2)(c), Fla....

...Traina made a strategic decision not to subpoena Valessa Robinson to testify at [Davis's] trial and that decision was reasonable under the circumstances. Additionally, trial counsel testified that he had no corroborative information to have Valessa Robinson's statement admitted into evidence, which Florida Statutes Section 90.804(2)(c) requires....

...he circuit court. [2] The codefendant's statement would fall within the "statement against interest" exception but for the provision that a statement "made by a codefendant ... implicating both himself and the accused, is not within this exception." § 90.804(2)(c), Fla....

...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. Second, the statements are not admissible under section 90.804(2)(c) as statements against interest. Section 90.804(2)(c) permits the admission of statements which are "so far contrary to the declarant's pecuniary or proprietary interest......

...1887, 144 L.Ed.2d 117 (1999) (holding that the portions of a non-testifying accomplice's confession that implicate the defendant do not fall within any hearsay exception); Williamson v. United States, 512 U.S. 594, 600-01, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (holding that the federal counterpart to section 90.804(2)(c) "does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory"); Brooks, 787 So.2d at 775 (same)....

...Here, while Antunes-Salgado's codefendants' statements were partially self-inculpatory, the State also presented those portions of the statements that implicated Antunes-Salgado and that shifted the majority of the guilt to him. These portions of the statements were inadmissible under section 90.804(2)(c) and Lilly and Williamson, and defense counsel was ineffective for failing to object on this basis....

...itness must be given the opportunity to admit, deny or explain making the statement. Since Munson could not be located, his testimony given at the first hearing could only be introduced at the second hearing as an exception to the hearsay rule under section 90.804(2)(a), Florida Statutes (1985)....

...troduced by both sides as if this were an original hearing. *411 Neither party, of course, is required to introduce Munson's testimony, but as in any other hearing or trial, the prior testimony of any witness may be introduced if the requirements of section 90.804(2)(a) are satisfied....

...rocure an absent witness's attendance, and the witness's absence must not be with the connivance or consent of that party. See also Putnal v. State, 56 Fla. 86, 47 So. 864 (1908). Munson's former testimony falls within the hearsay exception found in section 90.804(2)(a), Florida Statutes (1985), and possesses sufficient indicia of reliability to permit its use upon retrial....

...o stop me," and that he wasn't going to "let Randy take the fall for this." On the State's motion, the trial court excluded the statements, finding that they lacked any indicia of reliability. Prevatt argues that the statements were admissible under section 90.804(2)(c), Florida Statutes (2002), which provides: HEARSAY EXCEPTIONS.—The following are not excluded under s....

...However, like the trial court, we fail to find any evidence in the record to corroborate the statements purportedly made to Prevatt's mother. Because the statements lacked sufficient corroboration by any other evidence, and, thus, lacked the indicia of trustworthiness necessary to be admitted as substantive evidence under 90.804(2)(c), the statements were properly excluded....

...uding that the three portions of testimony at issue were admissible. The spontaneous statement made by Royston to his attorney in open court that Mordenti was "not the guy" would meet the statement against interest exception to the hearsay rule. See § 90.804(2)(c)....

...ary hearing under Rule 3.131(b) with objectionable hearsay, but that the hearsay was exempt from exclusion. Rejecting the more expansive approach originally adopted by our supreme court in Baker v. State, 336 So.2d 364 (Fla.1976), the Evidence Code, section 90.804(2)(c), Florida Statutes (2005), as subsequently itself adopted by court rule, excepts declarations against penal interest from the rule excluding hearsay only when the declarant is unavailable to testify and when corroborating circumstances show the trustworthiness of the statement....

...statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. § 90.804(2)(c), Fla. Stat. (2005). This exception applies only when the declarant is unavailable as a witness. See § 90.804(2), Fla....

...Before *520 the trial court could admit the testimony of the investigator's conversation with Larney as a hearsay exception, not only must Larney be unavailable to testify at trial, but some corroborating evidence must show the trustworthiness of his statement. See § 90.804(2)(c), Fla....

...- 41 - see Patel’s injury. Blake thus asserts that if Green were unavailable to testify at Blake’s trial, Parker’s recitation of Green’s statement would be admissible as a statement against interest, § 90.804(2)(c), Fla. Stat. (2005), and that if Green were available, Parker’s testimony could be admitted to impeach Green. Blake’s argument is conclusory and without merit. Under section 90.804(2)(c), in order to introduce a “statement tending to expose the declarant to criminal liability and offered to exculpate the accused,” the offering party must establish “corroborating circumstances” to show “the trustworth...

...Blake has not proven that a person who remained in the car could not see Patel’s injury. Furthermore, if the defense established Green’s unavailability for purposes of introducing Green’s out-of-court statements, the State could respond by introducing Green’s 2002 grand jury testimony under section 90.804(2)(a), Florida Statutes (2005), the former testimony hearsay exception....

...e introduction of a codefendant's custodial statement implicating the defendant is inapplicable to this case. Even if Swickle's state of mind was not pertinent, it appears that the testimony was admissible as a statement against penal interest under section 90.804(2)(c), Florida Statutes (1989)....

...corroborated facts found in Carpenter, . . . the limited information provided by Kasler, in confessing to the murder of Teri Lynn Matthews, is insufficiently specific and lacks the ‘particularized guarantees of trustworthiness,’ that seem to be required under § 90.804(2)(c).” The court therefore found that the “statements attributed to Kasler are insufficiently corroborated to qualify as a hearsay exception under § 90.804(2)(c).” Nevertheless, the court also continued its Jones analysis as though the statements were admissible and found “that even if Kasler’s statements were admitted on retrial, such evidence is not of a nature that it would probably produce an acquittal ....

...and her ability to respond to them was so limited due to her varied mental limitations the victim was unavailable.” We cannot accept that tortured interpretation of “unavailable.” The Legislature has defined “unavailability as a witness,” § 90.804(1), Fla....

...98-2, § 1, Laws of Fla. Dr. Grabau contends that this statutory provision, as amended, is unconstitutional because it allows the introduction into evidence of a deposition without a required showing of "unavailability," contrary to the requirements of section 90.804, Florida Statutes; and Florida Rule of Civil Procedure 1.330(a)(3); and, thus, violates article V, section (2)(a) (which empowers the Florida Supreme Court to adopt rules for the practice and procedure in all courts and specifies that...

...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. Id. at 340 & n. 2; § 90.804(1), Fla....

...nstitutional right to confront adverse witnesses; (2) this expanded former-testimony hearsay exception would result in "trial by deposition," thereby precluding the fact-finder from evaluating witness credibility; (3) the amendment simply strips the section 90.804(2)(a) former-testimony exception of its "unavailability" requirement, thereby making the section 90.804 exception obsolete; (4) the amendment is inconsistent with several rules of procedure, thereby causing confusion as to which rule should control; [footnote omitted] and (5) the expanded hearsay exception will shift expense burdens rela...

...We conclude that the amended statute is unconstitutional as an infringement on the authority conferred on the Florida Supreme Court by article V, section 2(a), of the Florida Constitution; and as a violation of article II, section 3, of the Florida Constitution, because it obviates and conflicts with section 90.804, Florida Statutes; and with Florida Rule of Civil Procedure 1.330; and denies due process....

...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, Department contends that K.R.'s deposition is admissible into evidence based on section 90.804(2)(a), Florida Statutes (applicable where "the declarant is unavailable as a witness"); and rule 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). Because the issues of "unavailability" under section 90.804(2)(a) and rule 1.330(a)(3), and other factors governing the admissibility of the partial deposition, have not been fully addressed below, we decline to review the question for the first time on appeal. We note, however, that if K.R.'s deposition is found admissible under section 90.804(2)(a) and rule 1.330(a)(3), then the record evidence is sufficient to prove the violations....

...In DeWolfe, the defendant was tried for the theft of two air conditioning units. Id. at 1144. At trial, DeWolfe sought to present two witnesses who would testify that they heard another person confess to the crime. Id. at 1143. The defendant relied on section 90.804(2)(c), Florida Statutes (2010), the declaration against penal interest hearsay exception, to assess whether the testimony could be admitted at trial....

...strated that it was focused on Tyler’s credibility and her testimony about the hearsay statements. However, the proper 2. Carpenter is distinguishable from Bearden because the declarant in Carpenter was unavailable to testify, and thus, section 90.804(2)(c) applied. However, Carpenter’s analysis regarding the jury’s role in assessing the credibility of an in-court witness is applicable here. - 11 - focus for the Chambers analysis is the reliability of the hearsay statements themselves....

...Under that section, hearsay is inadmissible as evidence at trial or a hearing except as provided - 12 - by statute. A possible hearsay exception for Tyler’s testimony regarding the statement might have been the exception for a statement against penal interest under section 90.804(2)(c), Florida Statutes. However, section 90.804(2)(c) provides that hearsay that constitutes a statement against penal interest is admissible if the declarant is unavailable to testify, and in the present case, Ray Allen Brown was available to and did testify at trial. Thus, Tyler’s testimony would not have been admissible under section 90.804(2)(c). However, in Chambers, the United States Supreme Court concluded that the exclusion of hearsay regarding a third party’s confessions to a crime violated the defendant’s constitutional right to due process—the state’s rules of evidence notwithstanding....

...ns against penal interest, because the exception could not be employed under the facts of his case. Indeed, the Florida courts have consistently applied the constitutional analysis in Chambers, despite the exception in section 90.804(2)(c), Florida Statutes, for declarations against penal interest. See Grim v....

...Judicial notice may be taken of all judicial records. § 90.202(6), Fla.Stat. However, the fact that the deposition may be judicially noticed does not render all that is in it admissible. See Milton v. State, 429 So.2d 804, n. 4 (Fla. 4th DCA 1983). In this case, while not referring to section 90.804(2)(a), Florida Statutes, appellee’s counsel tried to point out that the deposition was of a material witness in the instant case deposed in another similar case involving the same facts where the opposing party (appellant) was also present in an adverse position and had the opportunity to cross-examine the witness. In his motion for rehearing the trial court acknowledged that the deposition was admissible under section 90.804 and thus granted the rehearing....

corroborating circumstances as required by Section 90.804(2)(c), Florida Statutes (1981). Nor would the

...The trial judge found the statements admissible because they were made to friends and non-testimonial in nature. We find no error in the trial court’s decision reaching the same conclusion here. Mr. Howard’s other argument is that these statements are non-admissible hearsay, which don’t qualify under § 90.804(2)(c)’s exception for trustworthy statements against penal interest....

...by closed-circuit television. However, they argue that subsection 8.104(a)(2), like section 92.54, has the strange effect of allowing the court to take a witness’s testimony by closed-circuit television, if the witness is unavailable as defined by section 90.804(1). Under section 90.804(1) a witness may be “unavailable” because of a ruling of a court granting a privilege against testifying, physical absence, refusal to testify, lack of memory, or a physical or mental illness....

...the trial court properly excluded the expert’s proposed testimony.1 1 Appellant contends that certain statements made by the decedent to third persons (to establish this requisite predicate) should have been deemed admissible as statements against penal interest under section 90.804(2)(c), Florida Statutes (2013)....

...While it is true that a statement against penal interest is admissible if the declarant (here, the decedent) is “unavailable” as a witness—which is defined to include a declarant who is “unable to be present or to testify at the hearing because of death,” see § 90.804(1)(d)—it is subject to the following exception: “However, a declarant is not unavailable as a witness if such . . . inability to be present . . . is due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.” § 90.804(1)(e). See State v....

...declarant’s dying declaration was the declarant’s religious belief in the afterlife, and he maintains that in contrast to a justification based on the declarant’s religious belief, Florida’s existing dying declaration is secular and nondenominational. See § 90.804(2)(b), Fla....

...dying declaration was the declarant’s religious belief in the afterlife, and he maintains that in contrast to a justification based on the declarant’s religious belief, Florida’s existing dying declaration is secular and nondenominational. See § 90.804(2)(b), Fla....

...Former testimony is not excluded as hearsay, provided the declarant is unavailable and “the party against whom the testimony is now offered, or ... a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” § 90.804(2)(a), Fla....

...At the first trial, Essex's fifteen-year-old niece, B.D., testified as an eyewitness. At the second trial, B.D.'s testimony from the first trial was read into evidence. On appeal, Essex attacks the admissibility of the former testimony, arguing that under section 90.804(1), Florida Statutes (2006), and Crawford v....

...the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." 541 U.S. at 68, 124 S.Ct. 1354. Under the Florida Evidence Code, former testimony is admissible "provided that the declarant is unavailable as a witness." § 90.804(2)(a), Fla. Stat. (2006). Section 90.804(1) defines the concept of "[u]navailability of a witness." A finding that a witness is unavailable within the meaning of section 90.804(1) satisfies the unavailability requirement of Crawford. See Corona v. State, 929 So.2d 588, 595 (Fla. 5th DCA 2006) (applying section 90.804(1)(e) to decide whether a witness was "unavailable" for the purposes of the Confrontation Clause)....

..."The trial court's determination that a witness is `unavailable' for confrontation purposes involves a mixed question of law and fact which this court reviews de novo, giving deference to the basic, primary or historical facts as found by the trial court." Corona, 929 So.2d at 594 (citations omitted). Under section 90.804(1), one of the ways that a witness is unavailable is if she "is absent from the hearing, and the proponent of [her] statement has been unable to procure [her] attendance or testimony by process or other reasonable means." As the party...

...The defendant argues that the trial court erred in admitting Anthony's statements to detective Patton under the dying declaration hearsay exception because the evidence did not show that the statements were made with knowledge of his impending death. We disagree. Under Section 90.804(2)(b), Florida Statutes (2000), a statement made by a declarant while reasonably believing that his or her death is imminent, is admissible as a hearsay exception....

...cross-examine A.S. in front of the jury on the statement that he saw Melehan pick something up and throw it at C.L.’s truck. In ruling on the proffer, the trial judge allowed evidence of the deposition testimony to be presented to the jury, citing section 90.804(2)(a), Florida Statutes (2009), as authority....

...and there was insufficient evidence to convict Melehan beyond a reasonable doubt. 6 The motion was denied. AS.’s Deposition Testimony The trial judge initially deemed A.S.’s deposition testimony to be admissible as former testimony as allowed by section 90.804(2)(a), Florida Statutes (2009)....

...imony before it can be used as substantive evidence in a criminal case. The holding in State v. James that discovery depositions are not admissible as substantive evidence absent compliance with Rule 3.190© was in no way modified by the adoption of section 90.804(2)(a). In fact, the necessity of meeting the procedural requirements for perpetuating testimony before a deposition is admissible as substantive evidence is recognized in section 90.804(2)(a) by the express requirement that the deposition must be “taken in compliance with law.” Rodriguez, 609 So.2d at 498-99 (citations omitted) (footnote omitted)....

...Those eyewitnesses who saw the metal rod impaled in C.L.'s head offered no testimony as to how the rod became impaled in his head, and none of them saw the rod until after C.L.'s vehicle came to a complete stop. . Neither the State nor the defense anticipated A.S. would claim a lack of memory. . Section 90.804(2)(a), Florida Statutes provides: HEARSAY EXCEPTIONS....

...attorney back in March for a co-defendant’s trial and Joseph did not appear to testify. On appeal, Petit argues that an individual can only be considered “unavailable” for Confrontation Clause purposes if he fits into any of the categories in section 90.804(1), Florida Statutes (2007). Section 90.804, however, defines “unavailability” of the declarant for the purpose of the hearsay exceptions. But the Florida Supreme Court has defined unavailability for Confrontation Clause purposes much more broadly than section 90.804(1): “In order for a witness to be unavailable for confrontation purposes, the State must make a good faith showing of attempting to secure the witness....

...e of the abuse 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). Section 90.804(1), referred to in the foregoing subsection, defines "unavailability as a witness" to mean, inter alia, that a declarant is "unable to be present or to testify at the hearing......

...stand the duty or obligation to tell the truth because of her chronological age. Based on that stipulation, the trial court found the child incompetent to testify. This infirmity satisfies the test of unavailability under the statutory definition of section 90.804(1)....

unavailable declarant’s statement against interest. See § 90.804, Fla. Stat. We reject this argument. First, Suggs

...The Court does find that based on the evidence that he did entertain no hope whatsoever of recovery. The Court does believe that this is a dying declaration and does qualify under the evidence code and therefore I’m going [sic] grant the State’s motion to admit the evidence. Section 90.804(2)(b), Florida Statutes (2007), provides an exception to the hearsay rule for “a statement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death.” In Hayward v. State, 24 So.3d 17 (Fla.2009), the supreme court held: Pursuant to section 90.804(2)(b), Florida Statutes (2007), and this Court’s prior rulings, the deceased must have known and “appreciated his condition as being that of an approach to certain and immediate death,” although it is not necessary that the declarant “make express utterances” that he would never recover....

GROSS, C.J. The issue we address in this case is whether the trial judge abused his discretion in ruling that appellant failed to establish the unavailability of a witness under section 90.804, Florida Statutes (2008) so that the witness’s former testimony could be used at trial as an exception to the rule against hearsay....

...y of the circumstances and the evidence that has been presented, the credibility of the witnesses, [and] the timing of efforts that have been advanced here.” Wilson argues that the trial judge erred in excluding Culligan’s former testimony under section 90.804(2)(a). All of the hearsay exceptions contained in section 90.804(2) require that the declarant be “unavailable as a witness.” While Culli-gan’s testimony from the first trial meets the requirements of “former testimony” under section 90.804(2)(a), for that testimony to be admissible, Culligan must also have been “unavailable” within the meaning of section 90.804(l)(e), which provides, in pertinent part: 90.804....

...appears.”). This case falls between Essex v. State, 958 So.2d 431 (Fla. 4th DCA 2007) and McClain v. State, 411 So.2d 316 (Fla. 3d DCA 1982), two cases that considered the meaning of the “unavailability of a witness” within the context of the section 90.804(2)(a) former testimony exception to the rule against hearsay....

...Like the situation with the reluctant witness in McClain , due diligence in this case required that an unrelia *518 ble Culligan be under subpoena for the second trial. We find no abuse of discretion in the trial judge’s ruling that Wilson failed to establish Culligan’s unavailability under section 90.804....

...statement indicates that Green must have been the shooter because he was able to see Patel’s injury. Blake thus asserts that if Green were unavailable to testify at Blake’s trial, Parker’s recitation of Green’s statement would be admissible as a statement against interest, § 90.804(2)(c), Fla. Stat. (2005), and that if Green were available, Parker’s testimony could be admitted to impeach Green. Blake’s argument is conclusory and without merit. Under section 90.804(2)(c), in order to introduce a “statement tending to expose the declarant to criminal liability and offered to exculpate the accused,” the offering party must establish “corroborating circumstances” to show “the trustworth...

...- 42 -  Furthermore, if the defense established Green’s unavailability for purposes of introducing Green’s out-of-court statements, the State could respond by introducing Green’s 2002 grand jury testimony under section 90.804(2)(a), Florida Statutes (2005), the former testimony hearsay exception....

implicating her was a violation of Bruton and section 90.-804(2)(c), Florida Statutes (1985). The Florida

...DAMOORGIAN and CIKLIN, JJ., concur. . We find the issue regarding the exclusion of Small’s deposition testimony to be without merit. The testimony was not sufficiently corroborated by other evidence and thus lacked the indicia of trustworthiness necessary to be admissible under section 90.804(2)(c), Florida Statutes.

...guilt under Chambers v. Mississippi, 410 U.S. 284 (1973). Because neither exception to the hearsay rule applies, we affirm the lower court’s ruling. Dailey first argues that the affidavit is admissible as a declaration against interest under section 90.804(2)(c), Florida Statutes (2017)....

...But the circuit court was justified in concluding that under the circumstances here, Pearcy’s assertion that he alone killed Boggio was not a statement which “a person in the declarant’s position would not have made . . . unless he or she believed it to be true.” § 90.804(2)(c), Fla....

...While Samantha’s out of court confessions constitute hearsay,5 in Chambers, 410 U.S. at 302, the United States Supreme 5. These statements would not be admissible as a declaration against Samantha’s penal interest because she was not unavailable as a witness. See § 90.804(2), Fla....

...bestos. He also testified that Kaiser Gypsum did not sell its joint compound on the East Coast prior to 1968, and it began placing warnings on its joint compound packaging beginning in 1972. *906 The Riches objected to both depositions, arguing that section 90.804, Florida Statutes, requires that the party against whom the testimony is being used be in direct privity with his predecessor in interest....

...Kavanaugh and Rendle cases. Their objections were overruled, and portions of the depositions were read to the jury. Ultimately, the jury returned a verdict in favor of all of the defendants. Florida amended the Evidence Code in 1978 when it enacted Section 90.804, Florida Statutes, which provides as follows: (2) Hearsay exceptions....

...y direct, cross, or re-direct examination. This original language still remains in effect. Since the section’s enactment, there have been no appellate decisions in Florida defining the term “predecessor in interest.” The Legislative History of Section 90.804, Florida Statutes Prior to the enactment of section 90.804, former testimony was governed by section 92.22, Florida Statutes....

...It denotes mutual or successive relationship to the same right or property. Id. at 92 n. 2 (emphasis added) (quoting Sodak Distrib. Co. v. Wayne, 77 S.D. 496 , 93 N.W.2d 791, 795 (1958)). Osbum remained the law in Florida on this issue until the enactment of section 90.804(2)(a). When drafting section 90.804(2)(a), the Law Revision Council cited to Osbum, but made no clear statement of an intention to depart from its holding....

...or Wigmore’s treatises, leaving the courts with little guidance for determining the significance of the change in language. The Legislative History of Federal Rule of Evidence 804(b)(1) "While it is never cited by the Law Revision Council Notes to section 90.804(2), Federal Rule of Evidence 804(b)(1) was enacted shortly before Florida amended section 90.804. Pub. L. No. 93-595, 88 Stat. 1926-49 (codified as amended at Fed. R. Evid. 804 (1976)). This is significant to our analysis, as it not only uses the term “predecessor in interest,” but the pertinent language in Rule 804(b)(1) mirrors section 90.804(2)....

...Anderson, 888 F.2d 646 (10th Cir.1989) (relying upon Lloyd ’s holding in determining that the party was not a predecessor in interest). No circuit has “expressly disavowed this interpretation of Rule 804.” Culver v. Asbestos Defendants (BP), 2010 WL 5094698 (N.D.Cal. Dec. 08, 2010). Florida Statute 90.804(2)(a) We find the federal interpretation of “predecessor in interest” to be persuasive and hold that section 90.804(2)(a), Florida Statutes, does not require strict privity between a party and his “predecessor in interest.” This interpretation is consistent with providing the requisite due significance to the Florida Legislature’s changes in language as between section 92.22 and 90.804(2)(a)....

...the present party would have, was accorded an adequate opportunity for such examination, the testimony may be received against the present party.” Lloyd, 580 F.2d at 1187 (quoting McCormick on Evidence § 257 p. 261 (2d ed. 1972)). Application of Section 90.804(2)(a) We now turn to the facts of the instant case to determine whether the former testimony offered against Rich was properly admitted under section 90.804(2)(a)....

...through cross-examination”). Under these facts, the Riches shared a similar motive for examination with the party that examined William Lehnert in Kavanaugh. The trial court acted within its discretion when it admitted Lehnert’s deposition under section 90.804(2)(a)....

against interest pursuant to section 90.804(2)(a), Florida Statutes. Section 90.804(2)(c) states, Statement

...r unavailable to testify. What the State is driving at is that if Cannon is unavailable to testify, then it is possible that Cannon's statements might qualify for admission under the Evidence Code's hearsay exception for statements against interest. § 90.804(2)(c), Fla....

...Is unavailable as a witness, provided there is other corroborative evidence of the abuse 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 section 90.804(1)....

...A child is unavailable under section 90.803(23)(a)2 if the trial court finds that “the child’s participation in the trial or proceeding *1183 would result in a substantial likelihood of severe emotional or mental harm” or if the trial court finds that any of the definitions of “unavailability” set forth in section 90.804(1), Florida Statutes (1993), are met....

...Charles W. Ehrhardt, Florida Evidence, § 803.23, at 699 (1996). One of those definitions is that the declarant “[h]as suffered a lack of memory of the subject matter of his statement so as to destroy his effectiveness as a witness during trial.” § 90.804(l)(c), Fla.Stat....

...We affirm the denial of this ground because Bailey’s argument is facially insufficient. Bailey failed to allege, nor does the record provide, any support as to how the alleged testimony of the witness, Eduveha Bennett, would have been admissible at trial. See § 90.804(2)(c), Fla....

...The appellant states that at least one of these statements, of which he informed his counsel, was made when his father was aware of his imminent death, and that his counsel should have attempted to seek the admission of these statements as statements under belief of impending death pursuant to section 90.804(2)(b), Florida Statutes....

codefendants. Pursuant to the authority of section 90.804, Florida Statutes (1995), we *227find no merit

...the trial court properly excluded the expert’s proposed testimony.1 1 Appellant contends that certain statements made by the decedent to third persons (to establish this requisite predicate) should have been deemed admissible as statements against penal interest under section 90.804(2)(c), Florida Statutes (2013)....

...While it is true that a statement against penal interest is admissible if the declarant (here, the decedent) is “unavailable” as a witness—which is defined to include a declarant who is “unable to be present or to testify at the hearing because of death,” see § 90.804(1)(d)—it is subject to the following exception: “However, a declarant is not unavailable as a witness if such . . . inability to be present . . . is due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.” § 90.804(1)(e). See State v....

...o do so, and held her in contempt for her continued refusal. In other words, the trial court had already determined that Ms. Hope was “unavailable” as a witness, as that term is expressly defined in Florida’s Code and Rules of Evidence. See § 90.804(1)(b), Fla....

...e in light of her unanticipated death prior to trial. Appellant never moved to perpetuate this testimony pursuant to Florida Rule of Criminal Procedure 3.190(i) (“rule 3.190(i)”), but argues the deposition could have been properly admitted under section 90.804, Florida Statutes, because the witness was unavailable....

...compliance with law in the course of the same or another  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. § 90.804(2)(a), Fla....

...e Florida evidence code and rule 3.190 in answering the question of whether it was error to refuse to admit the testimony of an unavailable witness as substantive 2 evidence pursuant to the hearsay exception in section 90.804(2)(a). 609 So. 2d at 497-99. The court stated: We are presented with the question of whether a deposition is admissible as substantive evidence, under section 90.804(2)(a) of the evidence code, when, at the time of its taking, opposing counsel is not alerted by compliance with Rule of Criminal Procedure 3.190(j)[1] that the deposition may be used at trial. We hold that it is not. Accord [James]; Campos v. State, 489 So. 2d 1238 (Fla. 3d DCA 1986) (discovery deposition that qualifies as a hearsay exception under section 90.804(2)(a) is not admissible as substantive evidence unless it qualifies for such admission under the criminal rules of procedure); Jackson v....

...2009). 3  The holding in [James] that discovery depositions are not admissible as substantive evidence absent compliance with Rule 3.190(j) was in no way modified by the adoption of section 90.804(2)(a). In fact, the necessity of meeting the procedural requirements for perpetuating testimony before a deposition is admissible as substantive evidence is recognized in section 90.804(2)(a) by the express requirement that the deposition must be “taken in compliance with law.” Accord Terrell v....

...prove the truth of the matter asserted.”). Rather, it was offered to establish the effect of the missing persons flyer on the Brooks family and lay the foundation for Calhoun’s admissible statement about not knowing the girl on the flyer. See § 90.804(1)(c), Fla. Stat. (2019) (excepting admissions against interest from the hearsay exclusionary rule); § 90.804(18)(a) (excepting statements of a party opponent from the hearsay exclusionary rule)....

...In the deposition, Berlaga testified that he heard Colina stating to several people that he had killed a drug dealer for giving him bad drugs. The trial court denied the request based on the defendant’s failure to diligently procure Berlaga’s attendance in accordance with section 90.804, Florida Statutes (1991), and Florida Rule of Criminal Procedure 3.220(h). The jury convicted the defendant, and he now appeals. The deposition of Berlaga was properly excluded. The defendant sought to introduce the deposition as substantive evidence without perpetuating Berlaga’s testimony. Under section 90.804(2)(a), Florida Statutes (1991), deposition testimony is admissible as a hearsay exception if the witness is unavailable and if the opposing party had an opportunity and motive to develop the witness’ testimony....

...lice when they said that Appellant was involved. The trial court concluded that the omission was not prejudicial because the cellmate could not have testified at trial. He reasoned that the testimony was not sufficiently corroborated, as required by section 90.804(2)(c), Florida Statutes....

...Ards also sought to introduce the testimony of Wilbur Vareen that Hicks had told him he had “clipped a trick” for $900. Prior to trial, defense counsel attempted to depose Hicks and Schuller but they failed to appear. Ca-piases were issued for their arrest, but neither one was located. Section 90.804(2)(c), Florida Statutes (1983) pertains to the declaration against interest hearsay exception and renders admissible the following statements if the declarant is unavailable: A statement which, at the time of its making, was so far con...

...3d DCA), review denied, 511 So.2d 299 (Fla.1987); Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517 (Fla. 3d DCA 1985), review denied, 492 So.2d 1331 (Fla.1986); Wills v. Snapper Creek Nursing Home, Inc., 465 So.2d 562 (Fla. 3d DCA), review denied, 476 So.2d 675 (Fla.1985); § 90.804(2)(a), Fla.Stat....

...charged. He sought to do so by introducing admissions allegedly made by Bennett to third parties. However, the trial court determined that this testimony was inadmissible because Coffey had not demonstrated Bennett’s unavailability as required by section 90.804, Florida Statutes (1987)....

...ative negligence. Finally, appellees did not adequately demonstrate unavailability of Ms. Crossin. 1 The trial judge should not have admitted this evidence and we cannot consider the admission of this evidence harmless error. Even though on retrial, Section 90.804(2)(a) may permit the admission of this deposition “If the party against whom the testimony is offered ......

mental harm, in addition to findings pursuant to section 90.804(1). (b) In a criminal action, the defendant

...The common law rule allowing the use of former testimony requires, among other things, that the issues are substantially the same in both cases and the witness is not available. Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242 (Fla. 1st DCA 1984). That rule is codified in section 90.804(2)(a), which differs from section 90.803(22) in that the witness must be unavailable under section 90.804(2)(9)....

against penal interest, it clearly was not so. Section 90.804(2)(c), Florida Statutes (1999), pro-. vides

...or other law enforcement personnel.' " Id. (quoting § 90.803(8), Fla. Stat. (1999)). However, the incriminating statements themselves may be admissible as a statement against interest, one of several hearsay exceptions. See, e.g., § 90.804(2)(c), Fla....

...by corroborating circumstances, as follows: A statement tending to expose the de-clarant to criminal liability and offered to exculpate the accused is inadmissible, un *877 less corroborating circumstances show the trustworthiness of the statement. § 90.804(2)(c), Fla.Stat....

...He conducted most of his business with Brown, but appellant accompanied Brown during some of the transactions. At trial, appellant sought to introduce a transcript of Ms. James’s testimony at the forfeiture hearing, as former testimony of an unavailable witness under section 90.804(2)(a), Florida Statutes....

...The trial court, however, sustained the state’s objection to admission of Ms. James’ former testimony and excluded it. On appeal, appellant argues that the trial court abused its discretion in excluding Ms. James’s former testimony at his criminal trial. He asserts that her testimony was admissible under section 90.804(2)(a), because the sheriff’s office, through the assistant state attorney’s cross-examination, had an opportunity and similar motive to show that Ms....

...We agree. The standard of review for a trial court’s admission of evidence is abuse of discretion. Padgett v. State, 73 So. 3d 902, 904 (Fla. 4th DCA 2011). The trial court’s discretion, however, is limited by the rules of evidence. Id. Section 90.804(2), Florida Statutes (2010) provides an exception to the hearsay rule, when the declarant is unavailable, for: (a) Former testimony.--Testimony given as a witness at another hearing of the same or a different proceedin...

...mitting the murders alone; he denied that the defendant was involved. Because the co-defendant invoked his Fifth Amendment right during Garcia’s trial and refused to testify, Garcia attempted to introduce the co-defendant’s trial testimony under section 90.804(2)(a), as former testimony of an unavailable witness. The trial court denied the request....

...invoked his Fifth Amendment right against self-incrimination and was unavailable to testify. In concluding that the witness’s prior testimony at the pre-trial bond hearing was admissible at the defendant’s criminal trial, we explained: We do not read Section 90.804(2)(a) to require that, in order for prior testimony to be admitted as an exception to the hearsay rule, the opponent of the evidence must have the same motivation to examine the witness in both the prior proceeding and the one in which the prior testimony was being introduced....

...(2017), a statement Nicole made to a first responder on the scene of the attack. Specifically, Nicole told the first responder that her children were with their father, and Bush contended that this statement met the exception to the hearsay rule for a statement made “under belief of impending death,” § 90.804(2)(b), Fla....

...2007), and find none. A dying declaration is “a statement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death.” § 90.804(2)(b)....

...three hours after the attack. The issue is whether the statement that the boys were with their father concerned the physical cause or instrumentalities of what Nicole believed to be impending death or the circumstances surrounding her impending death. § 90.804(2)(b)....

...Based on the ruling, the defense chose not to call Wright as a defense witness. On appeal, Larry recognizes that Wright's alleged confession to Dely is not admissible as a hearsay exception for a declaration against penal interest under section 90.804(2)(c), Florida Statutes (2013), because Wright was available to testify at trial. Larry instead argues that his due process right to a fair trial was violated. -3-  In Lightbourne v....

...the court nor the defendant could compel it to do so. Mr. Gardner's attorneys argued that although Ms. Logan's deposition testimony was hearsay, it should be admissible on three separate, but overlapping, grounds: as prior testimony under section 90.804(2)(a), Florida Statutes (2012), as a statement against penal interest under section 90.804(2)(c), and as exculpatory -5- evidence pursuant to Chambers....

...postconviction counsel to leave him alone. Roberts died prior to the evidentiary hearing and Sheppard argues on appeal, as he did below, that the recantation evidence should have been admitted under the hearsay exception for statements against interest found in section 90.804(2)(c), Florida Statutes (2020)....

...(2020) (“A prosecution for perjury in an official proceeding that relates to the prosecution of a capital felony may be commenced at any time.”). 6 Accordingly, the circuit court should have next conducted the “trustworthiness” inquiry required by section 90.804(2)(c) to determine whether Roberts’s statement fell within the hearsay 6....

...was actually “more responsible than anyone else” for the murder of Patricia Gifford. However, the declaration itself is inadmissible because it does not fall within a hearsay exception. See Robinson v. State, 707 So. 2d 688, 691 (Fla. 1998); § 90.804(2), Fla....

...mpetency. In the absence of sufficient evidence of competency, the hearing officer erred in admitting 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)....

...of the Confrontation Clause. Marley, who was deceased by the time of trial, had earlier testified at a bond hearing regarding the conversation with John Gurino, who was also deceased by the time of trial. The trial court admitted the testimony under section 90.804(2)(a) and (c), Florida Statutes (2013), under the former testimony and statement against interest exceptions to the hearsay rule. Evidentiary rulings are reviewed for abuse of discretion as limited by the rules of evidence....

...o were unavailable to testify. Section 90.805, Florida Statutes, allows the admission of hearsay statements within hearsay, as long as “each part of the combined statements conforms with an exception to the hearsay rule as provided in s. 90.803 or s. 90.804.” We examine whether Marley’s testimony can be allowed under the former testimony exception of section 90.804(2)(a), Florida Statutes (2013), and whether Gurino’s statements are admissible as statements against interest under section 90.804(2)(c), Florida Statutes (2013). Moscatiello concedes that testimony at a bond hearing may qualify as former testimony....

...4th DCA 2012); Roussonicolos v. State, 59 So. 3d 238, 241-43 (Fla. 4th DCA 2011). However, he claims that he did not have the same opportunity or motive to question Marley at the bond hearing as he would have at trial. We disagree. Florida Rule of Evidence 90.804(2)(a), Florida Statutes (2013), permits the use of former testimony “if the party against whom the testimony is now offered ....

...Actually, the defense attorney did extensively cross-examine Marley and developed substantial discrediting information, including the fact that Marley had come forward to the prosecution to reduce his own charges. Therefore, the Arthur hearing satisfied the requirement of section 90.804(2)(a). Further, we reject Moscatiello’s contention that the trial court must also make a preliminary finding that the testimony is trustworthy before admitting it. No such requirement is contained within section 90.804(2)(a), unlike section 90.804(2)(c), where the admissibility of a statement against penal interest is conditioned on its trustworthiness. Where the witness can be challenged by cross-examination to ferret out inconsistencies and contradictions, the search for the t...

...ified, are also hearsay, and Moscatiello claims they did not fall within the statement against interest exception to the rule. The trial court found that they qualified as statements against penal interest, and thus, would have been admissible under section 90.804(2)(c)....

...United States, 512 U.S. 594, 599, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994) . . . . Id. at 774 (first bracket added; second bracket in original). The court then provided the following guidance: “Therefore, assuming the other requirements of section 90.804(2)(c) are met, it follows that a nontestifying codefendant or accomplice’s confession or inculpatory statement which also implicates the defendant should only be admitted if it ‘sensibly and fairly can be redacted to include only those statements which are solely self-inculpatory.’ Franqui v. State, 699 So. 2d 1332, 1339 (Fla. 1997).” Id. at 775. In other words, only those self-inculpatory portions of a declarant’s statement meet the requirements of section 90.804(2)(b)....

...2d DCA 2008), held “while [the appellant’s] codefendants’ statements were partially self- inculpatory, the State also presented those portions of the statements that implicated Antunes-Salgado and that shifted the majority of the guilt to him. These portions of the statements were inadmissible under section 90.804(2)(c) and Lilly [v....

...statement against interest. Thus, the test from Lilly requiring a guarantee of trustworthiness was for those purposes. Here, the statements of Gurino were not testimonial, and thus, the Confrontation Clause did not apply. 11 of the section 90.804(2)(c) exception....

...the statement should be redacted to eliminate those portions which are not statements against interest, we apply Brooks. Where the State is seeking to admit the out of court statements of co-defendants or accomplices pursuant to the requirements of section 90.804(2)(c), and some of the statements also implicate the defendant, they should not be admitted where they “sensibly and fairly can be redacted to include only those statements which are solely self-inculpatory.” Brooks, 787 So....

...Marley’s testimony that Gurino called himself the “SunCruz kid” was admissible as a statement against penal interest. But Gurino’s statement that “I got the work from Moscatiello” implicated another defendant, and was not solely self- inculpatory. It did not satisfy the requirements of section 90.804(2)(c) or 12 the requirements of Brooks....

...The Florida Evidence Code provides that “[e]xcept as provided by statute, hearsay evidence is inadmissible.” § 90.802, Fla. Stat. (2016). “This means that the only exceptions to the hearsay rule in Florida are the ones recognized by statutes such as sections 90.803, 90.804, and 90.805, Florida Statutes[.]” Mortimer v....

...lly caused the declarant’s unavailability.—A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result. § 90.804(2)(f), Fla....

...not indicate that Appellant acted with the purpose of sending the Victim to the hospital to prevent him from testifying. Thus, the State did not meet its burden in proving that the statements are admissible pursuant to the forfeiture-by-wrongdoing exception. See § 90.804(2)(f), Fla....

...We stay issuance of the mandate to allow the state to seek review of the certified questions set forth below. We certify the following questions as being of great public importance: (1) In light of Giles v. California, 554 U.S. 353 (2008) and Crawford v. Washington, 541 U.S. 36 (2004), does section 90.804(2)(f), Florida Statutes (2012), violate the Sixth Amendment Confrontation Clause?  (2) Does article I, section 16 of the Florida Constitution afford an accused greater protection than the Sixth Amendment of th...

...During trial, the state offered Joseph’s earlier testimony at a codefendant’s bond hearing under the common law hearsay exception of forfeiture by wrongdoing. Id. at 102-03. After the trial, in 2012, the legislature codified this common law hearsay exception by enacting section 90.804(2)(f), Florida Statutes (2012). See Ch. 2012-152, Laws of Fla. Section 90.804(2)(f) provides: 1The Supreme Court did not mention article I, section 16 when it declined to adopt section 90.804(2)(f)....

...party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result. Joseph’s earlier testimony falls squarely within the 90.804(2)(f) exception to the rule against hearsay—Joseph was unavailable and Mortimer “wrongfully caused, or acquiesced in wrongfully causing,” Joseph’s unavailability at trial....

...hearsay evidence is inadmissible, “[e]xcept as provided by statute.” Mortimer, 100 So. 3d at 102. Nonetheless, we affirmed the conviction because we found that at any new trial, Joseph’s testimony at the bond hearing would be admissible under section 90.804(2)(f). In a classic example of judicial overconfidence, we wrote that “[i]t is almost certain that our Supreme Court will adopt section 90.804(2)(f).” Id. at 104....

...The absence of a forfeiture rule covering this sort of conduct would create an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them.” Id. at 365. Mortimer, 100 So. 3d at 104. In 2013, the Florida Supreme Court declined to adopt section 90.804(2)(f) “to the extent it is procedural in light of constitutional concerns,” citing Crawford v....

...Washington, 541 U.S. 36 (2004). In re Amends. to the Fla. Evidence Code, No. SC13-98, 2013 WL 6500888, at *1 (Fla. Dec. 12, 2013). -3-  The constitutional concern raised by the Florida Supreme Court is whether section 90.804(2)(f) contravenes the Sixth Amendment Confrontation Clause....

...wrongdoing hearsay exception as being within the holding in Giles and Crawford. Giles, 554 U.S. at 367 n.2. No federal court that has considered rule 804(b)(6) has found a Sixth 2The language of Federal Rule of Evidence 804(b)(6) is identical to section 90.804(2)(f): Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability....

...declarant’s unavailability as a witness, and did so intending that result. Fed. R. Evid. 804(b)(6). -4- Amendment violation.3 No state court has found a Sixth Amendment violation when evaluating an evidentiary rule similar to 90.804(2)(f).4 3See United States v....

...Mechling, 633 S.E.2d 311, 325-26 (W. Va. 2006); People v. Geraci, 649 N.E.2d 817, 820-21 (N.Y. 1995); State v. McLaughlin, -5-  We have held that for the purpose of article V, section 2(a) of the Florida Constitution that section 90.804(2)(f) is a procedural statute....

...requirement of section 90.802. Mortimer is entitled to habeas relief because a key assumption of our earlier opinion was in error. We assumed that at any retrial Joseph’s hearsay testimony would be admissible. Because the Supreme Court did not adopt section 90.804(2)(f), that is not the case....

...tective Reid, it is clear that Velez made the statement while under the stress of excitement caused by the event. Thus, the trial court did not abuse its discretion by admitting the statement as an excited utterance. B. Dying Declaration—Section 90.804(2)(b) of the Florida Statutes Although we have concluded that the statement was properly admitted as an excited utterance pursuant to section 90.803(2), we also conclude the trial court did not abuse its discretion by determining that the statement qualified as a dying declaration admissible under section 90.804(2)(b). In order for the dying declaration exception to apply, “the deceased must have known and ‘appreciated his condition as being that of an approach to certain and immediate death,’ although it is not necessary that t...

...An exception exists when a statement is a statement against interest: “A statement tending to expose the declarant to criminal liability and offered td exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of *553 the statement.” § 90.804(2)(c), Fla. Stat. (2014). • “Essentially, the test for admissibility of statements against interest under section 90.804(2)(c) is whether (1) the declarant is unavailable, (2) the statements are relevant, (3) the statements tend to inculpate the declarant and exculpate the defendant, and (4) the statements are corroborated.” Dort, 175 So.3d at 840 (citation omitted)....

...the Confrontation Clause. The State responds that the statements were not testimonial and not subject to Crawford v. Washington, 541 U.S. 36 (2004). It also argues the statements qualified as statements against the declarant’s penal interest under section 90.804(2)(c), Florida Statutes (2016)....

...ed although we admit the defendant has been more focused on the redaction issue in his supplemental briefing. This brings us to the merits of the defendant’s argument. The hearsay exception for statements against penal interest can be found in section 90.804(2)(c), Florida Statutes, which provides: c) Statement against interest.—A statement which, at the time of its making, ....

...7  Here, the co-defendant was unavailable because he refused to testify in the middle of trial and recanted his prior confession and proffered testimony. Some of his statements were self-inculpating. Those statements fit within section 90.804(2)(c)....

...o wrongfully procures the absence of a witness from court cannot complain of the admission of the hearsay statement of the witness.’” Joseph v. State, 250 So. 3d 113, 120 (Fla. 4th DCA 2018) (citation omitted). This doctrine is newly codified in section 90.804(2)(f), which allows the admission of “[a] statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result.” § 90.804, Fla....

...y statute, hearsay evidence is inadmissible.” § 90.802, Fla. Stat. (2018). “This means that the only exceptions to the hearsay rule in Florida are the ones 13 recognized by statutes such as sections 90.803, 90.804, and 90.805, Florida Statutes.” Mortimer v. State, 100 So. 3d 99, 102 (Fla. 4th DCA 2012). Many of the traditional common law exceptions to the hearsay rule are contained in sections 90.803 and 90.804. One reason that exceptions to the hearsay rule “usually are justified” is “that the evidence meeting the requirements of exception possesses special reliability (greater than hearsay generally).” McCormick’s Handbook of the Law of Evidence § 262 (Edward W. Cleary ed. 2d ed. 1972). Section 90.803 exceptions “contain sufficient guarantees of reliability, [so] they apply even though the declarant is available to testify but is not called.” Charles W. Ehrhardt, Florida Evidence § 803 (2012 ed.). Section 90.804 exceptions “have historically been treated as not possessing the same reliability as the section 90.803 exceptions and are applicable only when there is a greater showing of need, e.g., the declarant is unavailable.” Id. Ev...

...to “routinely” admit “accomplice confessions implicating the accused,” “core testimonial statements that the Confrontation Clause plainly meant to exclude.” 531 U.S. at 63-64. The majority opinion properly focuses on the language of section 90.804(2)(c) to decide that the declarant’s out-of-court statement implicating the accused falls outside of the statutory exception....

...This is not a case where the statement tended to expose the declarant to criminal liability and was “offered to exculpate the accused,” so that consideration of “corroborating circumstances” that showed the “trustworthiness of the statement” would be appropriate. § 90.804(2)(c), Fla....

...on a motion for new trial, preservation of an issue is required to avoid second bites at the apple. At trial, the defendant never argued that the statement should be admitted as an admission. In argument during trial, the defendant’s counsel cited section 90.804(4), but never cited section 90.803(18). Second, for whatever tactical reason, the defendant insisted that a stipulation be announced by the trial court to the jury....

...While we agree with the Arizona court’s resolution of these issues, we go further. Since a witness who “[i]s exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of his statement” is definitively unavailable, see § 90.804(l)(a), Fla.Stat....

...r Service Commission to be conducted in accordance with the views expressed in this opinion. Reversed and remanded. . It appears that the witness’s deposition may also have constituted a statement against interest qualifying it for admission under Section 90.804(2)(c), Florida Statutes (1981).

inconsistent statement was admissible under section 90.804, Florida Statutes (1995), as a statement against

...State, 460 So.2d at 977 (footnote omitted). The state candidly concedes that the first requirement for admission of the aforesaid declaration against interest was not shown at trial — namely, that the out-of-court declarant was unavailable as a witness. Section 90.804(1), Florida Statutes (1985), provides that a declarant is unavailable as a witness for purposes of a hearsay rule exception where the declarant: “(a) Is exempted by a ruling of a court on the ground of privilege from testifying conce...

...We decline to follow the Committee’s recommendation to adopt the new provision of the Code because we question the need for the privilege to the extent that it is procedural. In chapter 2012-152, section 1, Laws of Florida, the Legislature amended section 90.804 to include the hearsay exception of “Statement offered against a party that wrongfully caused the declarant’s unavailability.” See § 90.804(2)(f), Fla....

...-4- Florida, in light of my continued concerns as to the constitutional implications of this provision as it is applied.2 Specifically, chapter 2012-152, section 1, which added a new hearsay exception to section 90.804(2), Florida Statutes, entitled “Statement offered against a party that wrongfully caused the declarant’s unavailability,” raises potential Sixth Amendment issues....

... intent to prevent the witness from testifying. Cf. Davis v. Washington, 547 U.S. 813, 833 (2006). Id. at 379 (Souter, J., concurring in part) (emphasis added). With the adoption of the “forfeiture by wrongdoing” doctrine as narrowly set forth in section 90.804(2), the critical question, as demonstrated by Giles, will be the establishment of the procedure for how the unavailable declarant’s out-of-court statement could be admitted into evidence in a manner consistent with the Confrontation Clause, which considerably restricts the scope of this hearsay exception....

...Tilghman Fox Bianchi & Gain, P.A., Miami, Florida; and Lee Delton Gunn, IV of the Gunn Law Group, Tampa Florida, Responding with comments - 12 -  APPENDIX Chapter 2012-152, § 1: 90.804 Hearsay exceptions; declarant unavailable (1) [No Change] (2) HEARSAY EXCEPTIONS....

...Baez argues on appeal that the trial court erred in excluding this proffered testimony from Cielo. We review a trial court’s eviden-tiary rulings for an abuse of discretion, but the trial court’s discretion is limited by the rules of evidence. Masaka v. State, 4 So.3d 1274, 1279 (Fla. 2d DCA 2009). Section 90.804(2)(c), Florida Statutes (2012), creates a hearsay exception for statements against interest made by an unavailable declarant: (c) Statement against interest.—A statement which, at the time of its mak-mg, was so far contrary to the de...

introduced as an exception to the hearsay rule under Section 90.804(2)(a), Florida Statutes, is equally applicable

...Payton was convicted of two counts of first-degree murder and was sentenced to two consecutive life sentences. Before trial, Payton filed a motion to admit the testimony of Randy Byous regarding an alleged confession to the murders by John Bicknas as a statement against penal interest pursuant to section 90.804(2)(c), Florida Statutes, and on due process grounds pursuant to Chambers v....

...s erroneous interpretation of these authorities is reviewed de novo . McCray v. State , 919 So.2d 647 , 649 (Fla. 1st DCA 2006). Similarly, review of a constitutional question is de novo . Henry v. State , 134 So.3d 938 , 944-47 (Fla. 2014). *132 A. Section 90.804, Florida Statutes, sets forth hearsay exceptions that require a declarant's unavailability, including the common-law hearsay exception regarding "declarations against interest:" A statement which, at the time of its making, was so far...

...statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. § 90.804(2)(c), Fla....

...ewolfe v. State , 62 So.3d 1142 , 1145 (Fla. 1st DCA 2011) (quoting Masaka v. State, 4 So.3d 1274 , 1282 (Fla. 2d DCA 2009) ). This is consistent with the fourth prong of the Dort test, as well as the trustworthiness requirement found in the text of section 90.804(2)(c)....

...ailable for cross-examination." Bearden v. State , 161 So.3d 1257 , 1261 (Fla. 2015) (citing Chambers , 410 U.S. at 300 -01 , 93 S.Ct. 1038 ). III. In this case, the State argues that Payton did not show whether Bicknas was "unavailable" pursuant to section 90.804(2)(c)....

...rtis , dispenses with any formalistic requirement that the declarant of a third-party confession be unavailable. Therefore, the question before this Court is whether Bicknas' statement to Byous carries the indicia of trustworthiness required by both section 90.804(2)(c) and Chambers ....

...the section 90.803(23) exception to unavailability: “because of then existing physical illness or infirmity.” State v. Townsend, 556 So.2d 817, 818 (Fla. 5th DCA 1990) [:Townsend /]. We now recede from this position. It is apparent that all the section 90.804 definitions of unavailability [included by reference into section 90.803(23)] assume the competency of the witness....

...d not discuss the fact that the legislature mandated that a condition precedent to the introduction of the testimony is that the child testify or be unavailable. The court therefore did not indicate where section 90.603(2) incompetency fits into the 90.804(1) definitions of unavailability....

inadmissible because none of the exceptions of section 90.804, pertaining to the declarations of unavailable

...to the evidence by the trial court.’”); Marek v. State, 14 So. 3d 985, 995 (Fla. 2009) (holding declarant’s statement not so far contrary to his pecuniary or proprietary interest when made many years after trial and statute of limitations had run); § 90.804(1)(b), Fla. Stat. (2021) (“‘Unavailability as a witness’ means that the declarant: . . . Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so . . . .”); § 90.804(2)(c), Fla....

...The rule is generally that a statement made by a codefendant during police custodial interrogation, inconsistent with his testimony at trial, cannot be introduced as substantive evidence at a trial of the defendant. The basic rule is codified in the Florida Evidence Code, section 90.804(2)(c), Florida Statutes (1985)....

...We reject Appellant’s argument that the trial court abused its discretion in allowing the State to- present the-testimony of an unavailable -witness by reading into evidence her- testimony from a recent trial involving the same parties and charges, which ended in a mistrial. See § 90.804(2)(a), Fla....

...'trial if she could not appear in person due to the childbirth. Defense counsel stated he had not received any communication from the witness and therefore would object to any finding that the witness was unavailable within the meaning of section ‘90.804(l)(d), Florida Statutes (2013) (providing that a witness is “unavailable” if the witness is unable to be presenter to testify at the'hearing because of then-existing physical or mental illness *920 or infirmity)....

...Because we conclude we must reverse on the basis of the Burton error, we do not reach the sentencing errors urged by appellant. The trial judge, while expressing serious reservations, was persuaded by the state to allow Hill’s confession on the basis of the 1990 amendment to section 90.804(2)(c), Florida Statutes (1989). Section 90.-804(2)(c) is the exception to the hearsay rule that allows introduction of statements or declarations against interest made by an unavailable nonparty witness. Prior to the 1990 amendment, section 90.804(2)(c) contained a final sentence which eliminated as such an exception to hearsay: “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 himself and the accused, is not within this exception.” That sentence was deleted by the 1990 amendment. We have previously held that section 90.804(2)(c), prior to the 1990 amendment, was a codification of the Bruton rule....

...Prior to the 1990 amendment, the confession of a nontestifying criminal code-fendant was inadmissible when offered against an accused in a criminal action by reason of both the constitutional rule announced in Bruton and the statutory prohibitions of section 90.804(2)(c), Florida Statutes (1989)....

...ressing *1339 objections to the admission of Hill’s confession because appellant had been denied the right to cross-examine and confront his co-defendant confessor. The state simply argued, and convinced the trial judge, that the 1990 amendment to section 90.804(2)(c) eliminated any such objection without regard to the overriding principle that a statute cannot abrogate an accused’s constitutional right....

...Rejecting the appellant’s primary point on appeal, we affirm the trial court’s determination that, because the state demonstrated that it had been “unable to procure [the child victim’s] attendance or testimony by process or other reasonable means,” § 90.804(l)(e), Fla.Stat....

...119 See supra note 17 and accompanying text. 120 Glaubius, 688 So. 2d at 916. 22 other contexts, Florida laws are much more forgiving where one party is the cause of a lack of evidence favorable to the other party. For example, section 90.804, Florida Statutes, provides that hearsay evidence is admissible if the opposing party “wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result.” 121 Ca...

...The Fourth DCA’s suggestion simply acknowledges this principle by alleviating strict requirements of proof in a restitution hearing. Another potential disadvantage of the Fourth DCA’s suggestion concerns the admission of hearsay. When hearsay is permissible as the 121 FLA. STAT. § 90.804(f) (2014). 122 State v....

...clarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Section 90.802, Florida Statutes (2017), provides that hearsay is inadmissible unless an exception exists under section 90.803 or section 90.804, Florida Statutes (2017). Section 90.803(2), Florida Statutes (2017), defines the “excited utterance” exception to the hearsay rule as: “A statement or excited utterance relating to a startling event or condition made while t...

...rt’s findings that the statements would not have been admissible as “dying declarations” and, therefore, the trial court correctly found that Appellant’s trial counsel was not ineffective for not seeking to introduce the statements at trial. Section 90.804(2)(b), Florida ’ Statutes, provides an exception to the hearsay rule for “a statement made by a declarant while reasonably believing that his or her death was imminent, concerning physical cause or instrumentalities of what the dec...

...Carpenter v. State, 785 So.2d 1182, 1201 (Fla.2001). The trial court found that the victim's alleged statement was inadmissible as an exception to the hearsay rule because it did not tend to expose the declarant-victim to criminal liability. We agree. See § 90.804(2)(c), Fla....

...We reject Noack's argument that we should treat pre-trial waiver differently for an appellate mandate ordering a new trial than following a mistrial, as both are treated equally under Rule 3.191(m). We cannot find Pugh "unavailable" due to lack of memory under section 90.804(1)(c), Florida Statutes, because the State argued at trial that Pugh was being untruthful (not that he did not remember) and the trial court consequently made no findings as to Pugh's memory....

...a lack of memory is not sufficient," and the trial court is required "to find that the witness has suffered lack of memory before unavailability results."). Moreover, even had Pugh been unavailable, it does not appear any applicable exception under section 90.804(2) exists....

...We reject Noack's argument that we should treat pre-trial waiver differently for an appellate mandate ordering a new trial than following a mistrial, as both are treated equally under Rule 3.191(m). We cannot find Pugh "unavailable" due to lack of memory under section 90.804(1)(c), Florida Statutes, because the State argued at trial that Pugh was being untruthful (not that he did not remember) and the trial court consequently made no findings as to Pugh's memory....

...a lack of memory is not sufficient," and the trial court is required "to find that the witness has suffered lack of memory before unavailability results."). Moreover, even had Pugh been unavailable, it does not appear any applicable exception under section 90.804(2) exists....

...5 Thus, the statement could not be admitted as substantive evidence of Noack’s guilt. Pugh’s statement to Investigator Troop may have been admissible as impeachment evidence, but this question does not need to be answered, for two 4 We cannot find Pugh “unavailable” due to lack of memory under section 90.804(1)(c), Florida Statutes, because the State argued at trial that Pugh was being untruthful (not that he did not remember) and the trial court consequently made no findings as to Pugh’s memory....

...k of memory is not sufficient,” and the trial court is required “to find that the witness has suffered lack of memory before unavailability results.”). Moreover, even had Pugh been unavailable, it does not appear any applicable exception under section 90.804(2) exists. 5 The fact that the State introduced this testimony without objection at the earlier trial does not permit its admission here. The second basis, argued at trial and now on appeal, is that the statement was necessary due to Pugh’s untruthful testimony....

PER CURIAM. AFFIRMED. See § 90.804(2)(d), Fla....

...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. The post-conviction court summarily denied this claim, ruling that, under section 90.804, the testimony was inadmissible because the defendant was not unavailable. See § 90.804, Fla....

...o the trial, it is apparent that the "attendance of the witness," as the term is used is Rule 3.190(j)(6), means more than mere presence and includes the reasonable likelihood that he is or soon will be able to give reliable, coherent testimony. See § 90.804(1)(d), Fla....

state contends that neither the requirements of section 90.804(2)(c) nor the confrontation clause were actually

...in limine to allow admission of a statement given by co-defendant Marciano to prosecutors after his arrest. Appellant sought to introduce the statement as an exception to the hearsay rule for statements against a declarant’s penal interest, under section 90.804(2)(c), Florida Statutes....

...discretion, limited by the rules of evidence.” Alvarez v. State, 147 So. 3d 537, 542 (Fla. 4th DCA 2014). Under Florida’s rules of evidence, hearsay statements are generally inadmissible unless they fall within an exception to the hearsay rule. Section 90.804(2)(c), Florida Statutes (2009), provides an exception to the hearsay rule for a statement against interest....

...A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. Essentially, the test for admissibility of statements against interest under section 90.804(2)(c) is whether (1) the declarant is unavailable, (2) the statements are relevant, (3) the statements tend to inculpate the declarant and exculpate the defendant, and (4) the statements are corroborated....

...down there to check things out,” and “Brian never admitted he shot John Torres.” Whether the hearsay exception for a statement against penal interest applies depends on the content of the incriminating declaration. Smith v. State, 746 So. 2d 1162, 1168 (Fla. 1st DCA 1999). “Section 90.804(2)(c) uses the term ‘statement’ in a narrow sense to refer to a specific declaration or remark incriminating the speaker and not more broadly to refer to the entire narrative portion of the speaker’s confession.” Id....

...“A non-testifying accomplice’s statement against penal interest is admissible as a hearsay exception if corroborating circumstances show the statement has ‘particularized guarantees of trustworthiness.’” Id. (quoting Lilly v. Virginia, 527 U.S. 116, 136-37 (1999), and citing § 90.804(2)(c), Fla....

...After reviewing the proffered statement, the relevant law, and the parties’ arguments, the trial court denied the motion to admit Marciano’s statement. We find no abuse of discretion in the trial court’s exclusion of Marciano’s statement under section 90.804(2)(c), Florida Statutes, and affirm appellant’s judgments of conviction and sentences. Affirmed. MAY and DAMOORGIAN, JJ., concur. * * * 7 Not final...

ON MOTION FOR REHEARING PER CURIAM. In light of the Supreme Court’s adoption of section 90.804(2)(f), Florida Statutes *68 (2012) “to the extent that the provision is procedural,” In re Amendments to the Florida Evidence Code, 144 So.3d 536 (Fla.2014), we grant the State’s motion for rehearing....

...sistant Public Defender, West Palm Beach, for petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, and Mark Hamel, Assistant Attorney General, West Palm Beach, for respondent. PER CURIAM. In light of the Supreme Court’s adoption of section 90.804(2)(f), Florida Statutes (2012) “to the extent that the provision is procedural,” In re Amendments to the Florida Evidence Code, 39 Fla....

requirements for admission of a deposition under section 90.-804(2)(a), Florida Statutes (1991). This argument

...See, e.g., Robinson v. State, 707 So.2d 688 (Fla.1998); Lightbourne v. State, 644 So.2d 54 (Fla.1994). The statements Brantley made to affiants Nottage and Charles could, under the proper predicate, qualify as statements against penal interest, under section 90.804(2)(c), Florida Statutes, which provides: (2) The following are not excluded under s....

...t to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless *940 corroborating circumstances show the trustworthiness of the statement. The test for admissibility under 90.804(2)(c) is 1) whether the declarant is unavailable, and if so, 2) whether the statements are relevant, 3) whether the statements tend to inculpate the declarant and exculpate the defendant, and 4) whether the statements are corroborated....

...That memorandum argued that the affidavits are hearsay and would be inadmissible if offered at trial. [3] Implicit in this prong is the requirement that the newly-discovered evidence be admissible at a new trial. See Jones I, 591 So.2d at 916; Jones v. State, 709 So.2d 512, 521 (Fla. 1998) ( "Jones II" ). [4] Section 90.804(1) defines "unavailability as a witness" to include situations in which the declarant (in this case, Brantley) "persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to...

ROTHENBERG, J. In this petition for writ of certiorari, the State of Florida (“the State”) seeks quashal of the trial court’s order denying the State’s motion to declare Michelle Rimondi (“Ms.Rimondi”) “unavailable” pursuant to section 90.804(l)(b), Florida Statutes (2013), and to admit her sworn former trial testimony during the resentencing proceeding of the defendant, Rickey Bernard Roberts a/k/a Less McCullers (“the defendant”)....

...*376 State, 840 So.2d 962, 978 (Fla.2002). Just prior to the commencement of the new sentencing proceeding, the State filed a motion seeking to introduce Ms. Rimondi’s former sworn trial testimony based on her “unavailability as a witness” under section 90.804(l)(b) because Ms....

...The trial court’s denial of the State’s motion to declare Ms. Rimondi unavailable and to admit her former sworn trial testimony is the subject of this petition. Pursuant to section 90.802, Florida Statutes (2013), hearsay evidence is inadmissible except as provided by statute. Section 90.804 provides some exceptions to the hearsay rule where the declarant is “unavailable.” “Unavailability” is defined as follows, and the State is proceeding under the highlighted subsection, (l)(b), to assert Ms....

...death or because of then-existing physical or mental illness or infirmity; or (e) Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means. § 90.804(1) (emphasis added). If the declarant is unavailable pursuant to section 90.804(1), section 90.804(2) provides certain exceptions to the hearsay rule. The State sought to introduce the former testimony of Ms. Rimondi, the victim of the armed sexual battery and the armed kidnapping and a witness to the first-degree murder of Ñapóles, under sections 90.804(l)(b) and 90.804(2)(a). Section 90.804(l)(b) provides that a witness is “unavailable” if he or she “[pjersists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so,” and section 90.804(2)(a) expressly permits the introduction of the former testimony of a witness who is unavailable under section 90.804(1). Specifically, section 90.804(2)(a) provides: (2) HEARSAY EXCEPTIONS....

...��s trial. She is now approximately forty-five years old, and she has refused to testify yet again at the new sentencing proceeding. Based on her refusal to testify, the State filed a motion to have Ms. Rimondi declared “unavailable” pursuant to section 90.804(l)(b) and to permit her former trial testimony to be read to the jury in lieu of her live testimony at the new sentencing proceeding....

...ardless of what the trial court did to her, she would not put herself through ■ it again and therefore would not testify. Despite Ms. Rimondi’s refusal to testify, the trial court denied the State’s motion to find Ms. Rimondi unavailable under section 90.804(l)(b) and to permit the State to read Ms....

...and, thus, departed from the essential requirements of law. *379 The trial court incorrectly focused its analysis on Ms. Rimondi’s ability to testify (whether she could testify) rather than on her refusal to testify (whether she would testify), as section 90.804(l)(b) requires....

...Rimondi’s ability to testify during her brief deposition has little relevance to her ability (or willingness) to recount the entire episode in court with the defendant present. (3) Ms. Rimondi’s ability to testify is irrelevant A witness is unavailable under section 90.804(l)(b) if he or she “[persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so.” Section 90.804(2)(a) provides that the former testimony of an unavailable witness is admissible at a subsequent proceeding. Ms. Rimondi’s trial testimony clearly qualifies as “former testimony” of a witness under section 90.804(2)(a), as this testimony was “given as a witness at another hearing of the same ... proceeding.” Id. Whether Ms. Rimondi is “unavailable” under section 90.804(l)(b) is determined by whether she will testify, not whether she can testify. Thus, the determination of her unavailability under section 90.804(l)(b) is not dependent on whether Ms....

...Rimondi earlier that morning at work to implore her to testify. Ms. Rimondi, however, told Mr. Howell that she was leaving to go to the hospital because she was shaking so badly she thought she was going to faint. This evidence is sufficient to find Ms. Rimondi unavailable under section 90.804(l)(b) and to admit her former trial testimony under section 90.804(2)(a)....

...The defendant’s counsel for the new sentencing, however, concedes that the admission of Ms. Rimondi’s former trial testimony, which was subject to vigorous cross-examination, does not violate the Confrontation Clause or Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), Additionally, section 90.804(2)('a) specifically permits the .introduction of the testimony of an “unavailable” witness given at another proceeding or in a deposition if the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. § 90.804(2)(a). No balancing test is required; section 90.804(2)(a) creates a per se rule of admissibility....

...The defendant, therefore, has been given a full opportunity to probe Ms. Rimondi’s testimony both at the original trial and subsequently on the issues relating to the new sentencing, and her testimony on those issues is admissible under sections 90.804(l)(b) and 90.804(2)(a)....

...In both cases, the Florida Supreme Court found that the trial court did not abuse its discretion by finding that the witnesses’ refusal to testify despite the possibility of a fine or incarceration being levied against them qualified the witnesses as unavailable pursuant to section 90.804(l)(b)....

...CONCLUSION Although well-intentioned, the trial court departed from the essential requirements of law by focusing on whether Ms. Rimon-di was able to testify rather than on her 'persistent refusal to testify when determining whether Ms. Rimondi was unavailable pursuant to section 90.804(l)(b) and whether her former trial testimony was admissible under section 90.804(2)(a)....

...The Florida Evidence Code provides that “[e]xcept as provided by statute, hearsay evidence is inadmissible.” § 90.802, Fla. Stat. (2016). “This means that the only exceptions to the hearsay rule in Florida are the ones recognized by statutes such as sections 90.803, 90.804, and 90.805, Florida Statutes[.]” Mortimer v....

...lly caused the declarant’s unavailability.—A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result. § 90.804(2)(f), Fla....

...not indicate that Appellant acted with the purpose of sending the Victim to the hospital to prevent him from testifying. Thus, the State did not meet its burden in proving that the statements are admissible pursuant to the forfeiture-by-wrongdoing exception. See § 90.804(2)(f), Fla....

...The trial court’s discretion is not unfettered, but is “limited by the rules of evidence.” Hudson, 992 So. 2d at 107. Allen asserts that Quintin’s alleged confession to Martin is admissible under the hearsay exception of a statement against penal interest. Section 90.804(2)(c), states: Statement against interest.—A statement which, at the time of its making, was so far contrary to the declarant’s pecuniary or proprietary interest or tended to subject the decla...

...unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. § 90.804(2)(c), Fla. Stat. (2005). This exception only applies when the declarant is unavailable. See § 90.804, Fla....

...Furthermore, - 15 - the statute specifically excludes statements tending to expose the declarant to criminal liability and offered to exculpate the accused “unless corroborating circumstances show the trustworthiness of the statement.” Section 90.804(2)(c), Fla....

...at McDonald confessed); see generally McWatters, 36 So. 3d at 639 n.8 (“Because the cases are not factually or procedurally similar and Chambers was expressly limited to its facts, McWatters has failed to establish a due process violation.”); § 90.804(2)(c), Fla....

...of the abuse 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). Section 90.804(1) provides the following definitions of unavailability as a witness: (a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of his statement; (b) Persists in refusing to testify...

...ability; she must find that the child’s participation in the proceedings would result in a substantial likelihood of severe emotional or mental harm; and, she must find that the victim was unavailable according to one or more of the definitions in section 90.804(1), provided there is other corroborative evidence of abuse....

...1 In accordance with the previous opinion, 589 So.2d at 391 , the trial judge, upon the state’s pre-trial motion, made a specific finding that the witness Fred Day, who disappeared after the first trial and whose testimony was therefore read into evidence at the second under section 90.804(l)(e), Florida Statutes (1989), was adverse to the state 2 for the purpose of admitting his prior inconsistent statements pursuant to section 90.608(2), Florida Statutes (1989)....

...State, 575 So.2d 181 (Fla.1991). Second, there is nothing at all to the claim — which concerns .the state’s star witness, Rose Charland, who was also unavailable for retrial — that the admission of her former testimony in acknowledged conformity with section 90.804(l)(e) and the United States Constitution, somehow violated the confrontation clause of the Florida Constitution, article I, section 16....

Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354. Section 90.804(l)(b), Florida Statutes (2011), provides that