Florida/Georgia Personal Injury & Workers Compensation

...x post facto laws. The third issue addressed concerns compliance with the requirements of section 90.803(23) in the trial court below. Prior to trial, the state served a motion to videotape the child's testimony for introduction at trial pursuant to section 92.53, Florida Statutes (1985). Section 92.53 provides that upon *216 a finding that there is a substantial likelihood that a victim or witness [in a sexual abuse or child abuse case] who is under the age of 16 would suffer at least moderate emotional or mental harm if he were requ...

...e. If the child is unavailable, the statute also requires other corroborative evidence of the abuse or offense. Glendening argues the district court below erred in holding that introduction of the videotaped testimony of the child, taken pursuant to section 92.53, was sufficient to satisfy the requirement that the child testify in order to admit the child's hearsay statements. We reject this argument. Section 92.53(1) provides that when the requisites of the statute are met, the trial court may order "the videotaping of the testimony of the victim or witness ......

...which videotaped testimony is to be utilized at trial in lieu of trial testimony in open court." (Emphasis added.) The statute clearly provides that videotaped testimony is the equivalent of testimony in open court. Moreover, the legislative intent in enacting section 92.53 was to spare children, to the extent constitutionally permissible, the trauma of testifying in open court. [1] The legislative intent would be defeated *217 if section 92.53 did not have the effect of allowing the videotaped testimony of children meeting the requirements of the statute where the laws of the state refer to "testimony" or "testifying." Application of section 92.53 to permit videotaping the child's testimony instead of requiring the child to testify in open court for purposes of admitting the child's out-of-court statements pursuant to section 90.803(23) does not violate the federal or Florida constitutional guarantee of the right of confrontation....

...tion of trauma, was rejected because the exception was not a firmly rooted exception and "there have been no individualized findings that these particular witnesses needed special protection." Id. at 2803. In contrast to the statute at issue in Coy, section 92.53 requires an individual determination for each child witness that the use of videotaped testimony is necessary to prevent the child from suffering emotional or mental harm....

...onviction and was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986). *219 Accordingly, we conclude the district court below correctly held that introduction of the child's videotaped testimony, taken pursuant to section 92.53, satisfied the requirement of section 90.803(23)(a)(2) that the child either testify or be unavailable....

...the children of the State of Florida who are victimized to assure that their right to be free from emotional harm and trauma occasioned by judicial proceedings is protected by the court... ." [2] U.S. Const. amend. VI; art. 1, § 16, Fla. Const. [3] Section 92.53(4) provides that [t]he court may require the defendant to view the testimony from outside the presence of the child by means of a two-way mirror or another similar method that will ensure that the defendant can observe and hear the test...

...must give way to the State's interest in sparing child victims of sexual crimes the further trauma of in-court testimony.'" Glendening v. State, 536 So.2d 212, 217 (Fla. 1988) (finding no violation of guarantee of right to confrontation in applying section 92.53, which permits videotaping of child's testimony, for purposes of admitting out-of-court statements of child victim of sexual abuse pursuant to hearsay exception) (quoting Chambers v....

...The court is also required to "make specific findings of fact, on the record, as to the basis for its ruling under this section." § 92.54(5). [2] Leggett v. State, 565 So.2d 315 (Fla. 1990), involved a different statute that permits a child to give videotaped testimony rather than personally appearing in court. See § 92.53, Fla....

...The niece's mother testified about her daughter's statement that Jaggers had placed his finger inside her "pee-pee" and that of Jaggers' stepdaughter. The testimonies of Jaggers' daughter and stepdaughter were introduced at trial by means of their video taped depositions, conducted after a hearing pursuant to section 92.53, Florida Statutes (1985)....

...t moderate emotional trauma or mental harm if they were required to testify in open court. The defense counsel objected to the court's determination of trauma on the ground that it was not supported by any specific findings of fact as required under section 92.53(7)....

...We do so even though we reverse his convictions involving the daughter and stepdaughter for a lack of evidence to convict because we *329 cannot separate the possible impact of that procedure from his conviction for the sexual battery of his niece. Recently, the Florida Supreme Court upheld the constitutionality of section 92.53, the Florida statute permitting such protected testimony, noting that the United States Supreme Court in Coy was careful to point out "that rights conferred by the Confrontation Clause are not absolute, and must give way to other important interests." Glendening v....

...y be viewed as firmly rooted. Since there have been no individualized findings that these particular witnesses needed special protection, the judgment here could not be sustained by any conceivable exception. Id. 108 S.Ct. at 2803. The policy behind section 92.53 is for the purpose of shielding child witnesses from the trauma of courtroom testimony in cases where substantial likelihood of trauma has been specifically found by the court after a proper hearing. It is this requirement of individualized findings under section 92.53, which the Florida Supreme Court in Glendening II found distinguished this statute from the generalized statute assailed in Coy....

...In so holding, the Glendening II court recognized that the policy of protecting child victims of sexual abuse from probable trauma in a given case qualified as such an important public policy of the type acknowledged in Coy. Although there is no constitutional infirmity with the procedures outlined under section 92.53, those procedures were not properly followed in this case. A review of the record reflects that the trial court did not make the required findings of fact under section 92.53(7) necessary to support its determination that the two child witnesses, whose testimonies were video taped, would suffer at least moderate emotional or mental harm if they were required to testify in open court. Such a case-specific finding mandated by section 92.53 is precisely what renders that statute constitutional, because the statute is closely tailored to protect the child victim only in those particular circumstances were it is deemed necessary....

...ldren for them to testify by way of video tape." That not only comes nowhere near complying with Coy (which admittedly was not available to the trial judge since it was decided after the trial below), but also does not comply with the requirement of section 92.53, that the court make a finding of a substantial likelihood of moderate trauma in order to shield such a witness and deprive a defendant of his sixth amendment right to confrontation....

...See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). We have no means of discerning the effect that this testimony may have had upon the jury in reaching its verdict on all three charges because of the constitutional ramifications of a failure to abide by section 92.53 with regard to Jaggers' fundamental right to confront his accusers....

...e withheld. Under the circumstances of this case, we are convinced that in balancing the due process rights of appellant and the possible harm, if any, to the victims by requiring their confrontation with appellant, or strict compliance with Coy and section 92.53, the rights of appellant must prevail....

...While for the reasons which I have previously stated I dissent from the acquittal of Jaggers on the two sexual batteries pertaining to the daughter and stepdaughter, I agree with the majority's reversal of the niece's conviction because I also find error in the trial court's application of section 92.53, Florida Statutes (1985), to the case at hand. I adopt in full the majority's analysis of the Supreme Court's Coy decision as it applies to the present circumstances. The record in this case is devoid of the specific findings of trauma required under section 92.53 to withstand constitutional scrutiny....

...those grounds. See § 90.608, Fla. Stat. (1985). I am not persuaded by the majority's contrary position on this evidentiary point, and I would not reverse the niece's conviction on that basis. Since I find that the trial court's failure to abide by section 92.53 in the introduction of the video tapes should be the sole basis for deciding this case, I would reverse all three convictions against Jaggers for sexual battery and remand the case to the trial court for a new trial. NOTES [1] The relevant portions of the statute are as follows: 92.53 Sexual abuse or child abuse case; videotaping of testimony of victim or witness under age 16....

...We have for review Feller v. State, 617 So.2d 1091 (Fla. 1st DCA 1993), in which the First District Court of Appeal certified two questions as being of great public importance: DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY FAILING TO MAKE THE FINDINGS REQUIRED BY SECTION 92.53(1), FLORIDA STATUTES *913 (1989), PRIOR TO ALLOWING A CHILD WITNESS TO TESTIFY BY MEANS OF VIDEOTAPE? Id. at 1094-95. IF THE FAILURE TO MAKE THE FINDINGS REQUIRED BY SECTION 92.53(1), FLORIDA STATUTES (1989), IS FUNDAMENTAL ERROR, MAY THE REVIEWING COURT, AS AN ALTERNATIVE TO ORDERING A NEW TRIAL, REMAND TO THE TRIAL COURT FOR A DETERMINATION OF WHETHER THE RECORD BEFORE THE TRIAL COURT AT THE TIME OF ITS RULING SUPPORTED THE FINDINGS REQUIRED BY THE STATUTE? Id....

...who is her stepfather. Defense counsel objected on the basis that the videotaped testimony "violates the Sixth Amendment Right to confrontation ... the privilege of face-to-face confrontation." The state attorney responded that this Court had upheld section 92.53 as constitutional and noted the statutory requirement that specific findings be made by the court....

...trial ruling allowing [the victim] to testify by means of video tape." The trial court denied the motion for new trial. On appeal, the district court determined that Feller did not object to any lack of specificity in the judge's findings made under section 92.53. Thus, the court ruled that Feller "has not preserved [the] right to argue on appeal that [he] is entitled to a new trial by virtue of the trial court's failure to make the findings with the specificity required by section 92.53." 617 So.2d at 1094....

...tion is implicated whether a witness testifies via closed circuit television as in *914 Hopkins or is permitted to give videotaped testimony as in this case. For the reasons expressed in Hopkins, we find that failure to make the findings required by section 92.53 does not constitute fundamental error....

...nding of substantial likelihood that the child would suffer moderate harm, it failed to satisfy the requirement that the court make specific findings of fact on the record to support the ruling. Failure to make the case-specific findings mandated by section 92.53 constitutes an independent ground for reversal....

...'s videotaped testimony. As this Court explained in Leggett, if we were to look behind the judge's words and predicate our decision solely upon the sufficiency of the evidence, "we would not only be ignoring the clear and unequivocal directive of subsection 92.53(7), but also we would be construing the statute in a manner that could render it unconstitutional under Coy [v....

...t 125. Accordingly, we quash the decision below and remand this cause with directions to reverse the judgment of conviction and order a new trial. It is so ordered. BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES and KOGAN, JJ., concur. NOTES [1] Section 92.53(1), Florida Statutes (1989), provides: On motion and hearing in camera and a finding that there is a substantial likelihood that a victim or witness who is under the age of 16 would suffer at least moderate emotional or mental harm if ......

...the trial court may order the videotaping of the testimony of the victim or witness in a sexual abuse case... . [2] Section 92.54, Florida Statutes (1989), permits a child under the age of sixteen who is a victim of or witness to a sexual offense to testify via closed circuit television. Section 92.54 is almost identical to section 92.53 in requiring 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." § 92.54(1). Both statutes also require the court to make specific findings of fact on the record as to the basis for its ruling. §§ 92.53(7), .54(5)....

...consider that the lower court erred in approving the jury's access to the videotaped testimony over defense counsel's objection to the submission of such evidence to the jury during its deliberation. Such testimony, taken before a trial pursuant to Section 92.53, Florida Statutes (1985), is essentially a deposition by visual electronic recording used to preserve the testimony of a child victim for presentation at trial....

...I write separately to emphasize that, when necessary to prevent emotional or mental harm to a child witness, a defendant's right to a prior opportunity for cross-examination can be properly protected without requiring actual, face-to-face confrontation in a rule 3.190(j) deposition. Section 92.53, Florida Statutes (2006), details just how the defendant's right to confront and *158 the child's right not to be harmed are achieved....

...ex offender may commit in the future. Given this compelling interest, vulnerable child witnesses should not be required to have an actual, face-to-face confrontation with the accused perpetrator in a rule 3.190(j) deposition to perpetuate testimony. Section 92.53 provides for the use of videotape to perpetuate a child victim's testimony....

...Significantly, it allows a trial court to order that a defendant view this videotaping outside of the presence of the child. [10] Specifically, if there is a substantial likelihood that the presence of the defendant would cause the child at least moderate emotional or mental harm, section 92.53 allows a trial judge to require a defendant to view the child's testimony "by means of a two-way mirror or another similar method that will ensure that the defendant can observe and hear the testimony of the victim or witness in person, but that the victim or witness cannot hear or see the defendant." [11] § 92.53(4)....

...Henriod, 131 P.3d 232, 237-38 (Utah 2006) (holding that Crawford did not abrogate Craig and that the district court erred when it determined that Crawford prevented the child witness from testifying through the use of closed-circuit television). [10] Rule 3.190(j) has been repealed insofar as it is inconsistent with section 92.53. See Ch. 79-69, § 3, Laws of Fla. [11] In addition to a child witness under age 16, section 92.53 applies to a person with mental retardation.

...At the outset, it is advisable to differentiate between testimony presented at trial by way of video and videotapes of previous interviews which are introduced into evidence at the trial. For example, certain child victims and witnesses are now permitted to testify at trial via videotaped testimony. § 92.53, Fla....

...or whether Cumbie’s presence in the room with Cathy might make it more or less likely that she would become upset or suffer trauma. See Glendening v. State, 536 So.2d 212 (Fla.1988) (discussing adequacy of findings for applying analogous Fla.Stat. § 92.53, allowing videotaping of testimony of child witness, while defendant watched from behind two-way mirror)....

...as an expert; that there was no evidence of a substantial likelihood that the child would suffer moderate emotional or mental harm due to the defendant's presence if required to testify in open court; and that the state had not met its burden under section 92.53, Florida Statutes....

...Alternatively, the defendant seeks a new trial based on several alleged evidentiary errors. The first of these is the defendant's claim that the trial court failed to make the required findings to support the presentation of the victim's testimony by videotape. Section 92.53, Florida Statutes, provides that the testimony of a child under sixteen may be presented by videotape if there is a "substantial likelihood" the child will suffer "at least moderate emotional or mental harm due to the presence of the defendant if the child ......

...ape. As the defendant says, the findings in the present case do not address the potential emotional or mental harm to the victim. The state maintains that the defendant has waived the right to contest the adequacy of the trial court's findings under section 92.53, Florida Statutes, because the issue was not preserved for review. We agree. Although the defendant objected under section 92.53 during the hearing on the state's motion to videotape the victim's testimony, the objection was not renewed at trial when the testimony was offered....

...The objection at trial was based entirely on another ground; that is, the court's failure to determine whether the victim was competent to testify as a witness. The supreme court held in Feller v. State, 637 So.2d 911, (Fla.1994), that the failure to make findings under section 92.53(7), Florida Statutes is not fundamental error....

...ed. In order to address this point, it is first necessary to discuss certain matters which took place during the progress of the case. Prior to trial, the state served a motion to video tape Jennifer's testimony for introduction at trial pursuant to section 92.53, Florida Statutes (1985)....

...regarding admissibility of the statement. See generally Leggett v. State, 565 So.2d 315 (Fla.1990) (refusing to look behind legally insufficient findings of trial court offered to support conclusion that child could testify by videotape, pursuant to section 92.53, Florida Statutes, to determine whether evidence would support conclusion)....

...ue). Glendening affirms a decision (from another second district panel having no common members with Jaggers ) admitting prior inconsistent hearsay statements under section 90.803(23), Florida Statutes, when the three year old victim recanted during section 92.53(1) testimony held to be equivalent to trial testimony....

...V, § 3(b)(3), Fla. Const. A Duval County jury convicted Leggett of one count of aggravated child abuse in the beating of his seven-year-old nephew. The child was permitted to give videotaped testimony rather than personally appearing in court, pursuant to section 92.53, Florida Statutes (1987). Leggett challenged the child's testimony on appeal. The First District Court of Appeal affirmed the conviction. Section 92.53 reads in pertinent part: (1) On motion and hearing in camera and a finding that there is a substantial likelihood that a victim or witness who is under the age of 16 would suffer at least moderate emotional or mental harm if he were req...

...We'll do that today, I believe at 11 o'clock. Clearly, the foregoing commentary failed to comply with the requirements of the statute. There was no finding that there was a substantial likelihood that the child would suffer at least moderate psychological or mental harm, as required by subsection 92.53(1). Further, there was a failure to comply with subsection 92.53(7) by making specific findings of fact on the record with respect to the nature of the ruling....

...We upheld the videotaping in Glendening because there was a case-specific finding of necessity. By requiring specific findings, the statute ensures that the judge has made an individualized determination employing the proper standard. [*] *318 It may be that the judge's failure to pronounce the "magic words" called for by subsection 92.53(1) could be excused if it were clear that the judge had employed the proper standard. See Peterson v. State, 382 So.2d 701 (Fla. 1980). However, if we were to look behind the judge's words and predicate our decision solely upon the sufficiency of the evidence, we would not only be ignoring the clear and unequivocal directive of subsection 92.53(7), but also we would be construing the statute in a manner that could render it unconstitutional under Coy....

...In Jaggers, the judge authorized the videotaping of a child's testimony by stating that his decision was based on the testimony of the guardian ad litem. In reversing the conviction, the court of appeal held: Although there is no constitutional infirmity with the procedures outlined under section 92.53, those procedures were not properly followed in this case. A review of the record reflects that the trial court did not make the required findings of fact under section 92.53(7) necessary to support its determination that the two child witnesses, whose testimonies were video taped, would suffer at least moderate emotional or mental harm if they were required to testify in open court. Such a case-specific finding mandated by section 92.53 is precisely what renders that statute constitutional, because the statute is closely tailored to protect the child victim only in those particular circumstances were [sic] it is deemed necessary....

...ant's motion for judgment of acquittal. We affirm. *477 As to appellant's first point, we decline to address the issue of the propriety of the trial court's giving the jury the videotaped testimony of the children to view during their deliberations. Section 92.53, Florida Statutes (1985), previously section 90.90, specifically allowed for the videotaping of the testimony of the instant case....

...is posture, we decline to hold such action to be per se prejudicial and reversible error. As to appellant's second point, he argues that by limiting his presence at the videotaped hearing to viewing the witnesses behind a two-way mirror, pursuant to section 92.53(4), the court relied on the wrong statute, since appellant's crime was committed prior to 1985, and that the court unconstitutionally abridged his Sixth Amendment right to confrontation....

...He also argues that section 90.90 violates article V, section 2 of the Florida Constitution. As to which statute should have applied, this issue has been waived since no objection was made below, and both the prosecutor and defense counsel discussed the State's motion in terms of the procedure set forth in section 92.53....

...nt in giving their statements, sufficiently corroborated the children's prior inconsistent statements. Thus, the trial court did not err in denying appellant's motion for judgment of acquittal. AFFIRMED. WENTWORTH and NIMMONS, JJ., concur. NOTES [1] Section 92.53(1) provides: On motion and hearing in camera and a finding that there is a substantial likelihood that a victim or witness who is under the age of 16 would suffer at least moderate emotional or mental harm if he were required to testify...

...hings received in evidence... ." Because of our disposition of the issue in the instant case, we do not address the argument that videotaped testimony is the equivalent of "evidence" as contemplated by the rule. [4] Section 90.90, the predecessor to section 92.53, did not provide for the defendant's presence to be limited to review of the testimony behind a two-way mirror.

the functional .equivalent of her testimony.. Section 92.53(3) expressly conditions the trial court’s power

...ements made by the child victim to police officers and other child abuse investigators. Appellant's remaining issue concerns the propriety of the trial court's decision to allow the victim, W.O., to give her trial testimony by videotape, pursuant to section 92.53, Florida Statutes (1989)....

...17, 1991. At that time, defense counsel objected on the basis that the video testimony "violates the Sixth Amendment right to confrontation ... the privilege of face to face confrontation." In response, the prosecutor called the court's attention to section 92.53, explaining the requirement that certain findings be made by the court....

...After the verdict, the defense moved for a new trial, alleging: "The Court erred in its pre-trial ruling allowing [W.O.] to testify by means of video tape." *1094 At no point prior to or during the trial did the defense object to any lack of specificity in the judge's findings made under section 92.53(1)....

...rely asking the court to allow face to face confrontation. The defense has not preserved its right to argue on appeal that Mr. Feller is entitled to a new trial by virtue of the trial court's failure to make findings with the specificity required by section 92.53....

...This case points out the salutary purpose of the rule requiring an objection to be made on specific grounds. It would appear that the testimony of Dr. Harris, apparently accepted by the trial court, is facially sufficient to comply with the dictates of section 92.53, as well as the case-specific findings requirement established in Maryland v....

...92.54(5), Florida Statutes (1989) (allowing closed circuit television testimony by a child abuse victim), constitutes fundamental error. Hopkins, supra . We believe it is appropriate to certify the same question as it relates to findings required by section 92.53. We therefore certify the following question to the supreme court as a question of great public importance: DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY FAILING TO MAKE THE FINDINGS REQUIRED BY SECTION 92.53(1), FLORIDA STATUTES (1989), PRIOR TO ALLOWING A *1095 CHILD WITNESS TO TESTIFY BY MEANS OF VIDEOTAPE? Our consideration of this case has led us to ponder a question apart from the substantive legal issues raised by the appellant and the state of Florida....

...ry hearing in order to allow the trial court to determine whether the state's reasons for use of a peremptory challenge was race neutral). In the present case a record already exists upon which the trial court could consider the findings required by section 92.53(1)....

...593 So.2d at 1165. Recognizing these factors, and with full deference to the supreme court's decision in Leggett v. State, supra, n. 2, we certify an additional question as one of great public importance: IF THE FAILURE TO MAKE THE FINDINGS REQUIRED BY SECTION 92.53(1), FLORIDA STATUTES (1989), IS FUNDAMENTAL ERROR, MAY THE REVIEWING COURT, AS AN ALTERNATIVE TO ORDERING A NEW TRIAL, REMAND TO THE TRIAL COURT FOR A DETERMINATION OF WHETHER THE RECORD BEFORE THE TRIAL COURT AT THE TIME OF ITS RULING...

...The law should be logical and should not ignore principles of common sense. Remedies should be tailored to address the specific wrong which has occurred. The error which is alleged to have occurred in the trial court is the failure of the trial court to make the specific findings required by section *1096 92.53(1), Florida Statutes....

...I concur in the majority opinion's certification of the two questions of great public importance to the supreme court. I respectfully dissent from affirmance, however. In my view, the trial court did not make sufficient specific findings of fact to comply with the requirements of section 92.53, and this error was adequately preserved for appellate review. Accordingly, I would reverse and remand for further proceedings and would not reach the other points on appeal. The majority opinion concludes that any error regarding the sufficiency of the findings of fact required by section 92.53(7) was not properly preserved for appellate review because defense counsel did not make objections to the sufficiency of the findings after the trial court stated on the record the reasons for its decision to permit the state to use vid...

...I do not agree that the defendant was required to make such objections to preserve this matter for appellate review for the reasons stated in my dissent in Hopkins v. State, 608 So.2d 33, 37 (Fla. 1st DCA 1992), review granted, 618 So.2d 1368 (Fla. 1993). Section 92.53 sets out the special statutory procedure that must be followed by the trial court in determining whether to permit the use of the child's videotape testimony in lieu of testifying in court....

...counsel should be permitted, much less required, to further argue the propriety of or deficiencies in the court's ruling. In the case before us, the videotape matter came on for consideration pursuant to the state's pretrial motion made pursuant to section 92.53 (filed November 9, 1990) in which the state sought leave to present the child's trial testimony by videotape taken out of the defendant's presence....

...stain moderate harm if compelled to testify in court in the presence of the defendant, and ruled that this witness would be permitted to testify by videotape. Thereafter, the videotape testimony was taken in the presence of the judge as specified in section 92.53(3), with attorneys for the state and the defendant participating in the examination....

...No objection to the use of the videotape was renewed by defense counsel during trial when the tape was played; however, in his motion for new trial filed after the adverse jury verdict, Appellant again raised the court's ruling on the state's motion to permit use of the videotape testimony as a ground for new trial. Section 92.53 contemplates that the decision to use videotape testimony in lieu of live testimony at trial will be decided pre-trial by the trial court after holding an evidentiary hearing and hearing argument on the issue....

...the court's findings of fact. Thus, I disagree with the contrary view expressed in Sanders v. State, 568 So.2d 1014 (Fla. 3d DCA 1990), rev. denied, 581 So.2d 166 (Fla. 1991), and Hopkins v. State, 608 So.2d 33 (Fla. 1st DCA 1992), primarily because section 92.53 seriously implicates the deprivation of a defendant's constitutional right to counsel and a defendant's constitutional right to confront witnesses against him....

...new such objections when the videotape was offered. To so infer, it seems to me, is contrary to the purpose of the statutory scheme requiring all such objections to be made and ruled on pretrial outside the presence of the jury. In my view, sections 92.53 and 92.54 specify special procedures that differ considerably from the ordinary situation involving the offer of evidence and objection to its admissibility during trial....

...gment of conviction for failure of the trial court to make the specific findings required by the statute, and remand for a new trial. I do not view this error as harmless because such legally sufficient findings are required, not only to comply with section 92.53, but to meet the requirements set forth in Maryland v....

...3157, 111 L.Ed.2d 666 (1990). I seriously doubt that the psychologist's testimony in this case is sufficient to satisfy the Craig test. See Myles v. State, 602 So.2d 1278 (Fla. 1992). But I would first allow the trial court to make that determination on remand. NOTES [1] Section 92.53(1), Florida Statutes (1989), provides: "On motion and hearing in camera and a finding that there is a substantial likelihood that a victim or witness who is under the age of 16 would suffer at least moderate emotional or mental harm if he were required to testify in open court ......

...cifically object to the videotaped testimony actually prejudiced appellant. In the course of this inquiry, the court would be allowed to look at the question of whether the testimony before the court was indeed sufficient to meet the requirements of section 92.53, Florida Statutes (1989)....

...hild is unavailable as a witness and there is other corroborative evidence of the abuse. Initially, appellant argues that C.B.'s hearsay statements were admissible under section 90.803(23) because C.B. would "testify"—via her videotaped deposition. Section 92.53, Florida Statutes (1997)(Videotaping of testimony of victim or witness under the age of 16 or person with mental retardation), outlines the procedure to be followed when a child victim's videotaped testimony is to be utilized at trial in lieu of live testimony. A videotaped statement of a child taken pursuant to section 92.53 is admissible in court and satisfies the requirement in section 90.803(23) that the child testify in order to admit out-of-court statements. See Glendening v. State, 536 So.2d 212 (Fla.1988). Section 92.53 delineates specific procedural requirements which must be met, including the filing of a motion, a finding by the trial court that the child would suffer at least moderate emotional or mental harm due to the presence of the defendant, the presence of the opposing party and their counsel at the videotaping, and the trial judge's or special master's precedence over the videotaped proceedings or the waiver of this requirement. See § 92.53, Fla. Stat.; Feller v. State, 637 So.2d 911, 914 (Fla.1994). Because C.B.'s deposition was not videotaped in compliance with section 92.53, we agree that these out-of-court statements are not admissible as the equivalent of testimony in open court pursuant to section 90.803(23). Appellant did not file a motion requesting that the trial court videotape C.B.'s testimony pursuant to section 92.53, and there was no notice to the opposing parties that appellant would seek to use the videotaped testimony in lieu of C.B.'s actual testimony....

...as testimony in lieu of C.B.'s testimony in open court is illustrated by the deposition itself. In the deposition, the attorneys asked C.B. her age, school, and favorite subject. C.B. was never questioned about the alleged incident of sexual abuse. Section 92.53 does not convert ordinary depositions or other hearsay statements into admissible testimony merely because they were preserved by videotaping. See Glendening, 536 So.2d at 212; State v. Asfour, 555 So.2d 1280 (Fla. 4th DCA 1990)(finding that videotaped initial police interview with alleged child victim of sexual abuse was not testimony pursuant to sections 92.53 or 90.803(23))....

...itting remote testimony by child victims, either by closed-circuit television or by videotaped deposition, to protect them from trauma associated with facing their alleged assailants face-to-face. See, e.g., ALA . CODE § 15-25-2; FLA . STAT . ANN . § 92.53. 6  permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibili...

...Butterworth, Atty. Gen., Tallahassee and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for appellee. COWART, Judge. The defendant was charged with sexual battery on a person twelve years of age or older. § 794.011(5), Fla. Stat. (1983). Pursuant to section 92.53, Florida Statutes, the trial court permitted the State to videotape the victim's testimony for use at trial in *14 lieu of live testimony....

...ruling was based upon the testimony at the hearing might not have satisfied section 92.54(5)'s requirement of specific findings as to the basis for his ruling. In Jaggers v. State, 536 So.2d 321 (Fla. 2d DCA 1988), the state had filed a motion under section 92.53, Florida Statutes, to videotape the testimony of two children outside the presence of the defendant and use the videotape at trial in lieu of the children's live testimony. Section 92.53 sanctions such a procedure, but, as in section 92.54(5) at issue here, the trial court must "make specific findings of fact, on the record, as to the basis for its ruling." Section 92.53(7), Fla....

...and explained that his decision was based on hearing testimony of the children's guardian ad litem. Jaggers, 536 So.2d at 324. The appellate court reversed Jaggers's conviction because the trial judge had not made the findings of fact required under section 92.53(7). Significantly, the court observed that the statute would be unconstitutional without the case-specific findings mandated by section 92.53(7). Specifically, the court said: A review of the record reflects that the trial court did not make the required findings of fact under section 92.53(7) necessary to support its determination that the two child witnesses, whose testimonies were video taped, would suffer at least moderate emotional or mental harm if they were required to testify in open court. Such a case-specific finding mandated by section 92.53 is precisely what renders that statute constitutional, because the statute is closely tailored to protect the child victim only in those particular circumstances were [sic] it is deemed necessary....

...1990), the supreme court approved this language from Jaggers and reversed an attempt by this court in Leggett v. State, 548 So.2d 249 (Fla. 1st DCA 1989), to limit Jaggers to cases in which the record reveals inadequate evidentiary support for the judge's ruling. Section 92.54, like its companion, section 92.53, impacts a defendant's right to a "face-to-face meeting with witnesses appearing before the trier of fact," a right which is guaranteed by the Sixth Amendment's Confrontation Clause....

...ify at trial in the absence of a face-to-face confrontation with the defendant. Maryland v. Craig , at 855-56, 110 S.Ct. at 3169, 111 L.Ed.2d at 685. The case-specific findings required by section 92.54(5) serve the same purpose as those required by section 92.53(7); they render the statute constitutional and the consequent denial of the defendant's right to face-to-face confrontation permissible....

...ion 92.54(5) to the constitutionality of the statutory scheme. See Leggett, 565 So.2d at 318; and Gaither v. State, 581 So.2d 922, 924 (Fla. 2d DCA 1991) (suggesting that a trial court's failure to make the case-specific findings of fact required by section 92.53(7) may be fundamental error)....

...dant would be more than de minimis, meaning that any such resulting distress is more than mere nervousness, excitement, or reluctance to testify. In an earlier opinion, the Florida Supreme Court interpreted the similar statutory standard provided in Section 92.53(1), Florida Statutes (1987), and specifically cautioned "that mere discomfort or even fright, without more, does not meet the statutory criterion." Leggett v....

...The appellant, Kenneth Poukner, challenges his judgments and sentences for sexual battery and lewd, lascivious, or indecent assault upon a child. Although we only find merit in his contention that he was improperly sentenced, we find it necessary to briefly discuss his other two contentions. First, Poukner contends that section 92.53, Florida Statutes (1985), is unconstitutional....

...However, that statute was specifically found constitutional in Glendening v. State, 536 So.2d 212, 217 (Fla. 1988). Alternatively, Poukner contends that the trial court erred in admitting the videotaped testimony of one of the child victims without making an individualized finding, as required by section 92.53, see Glendening, that there is a substantial likelihood that that victim would suffer at least moderate emotional or mental harm if she were required to testify in open court....

102, a new rule that tracks the language of section 92.53, Florida Statutes (1991), for the videotaping

...otaped testimony of the child victim in lieu of live testimony without first making a finding of a substantial likelihood that the child would suffer at least moderate emotional or mental harm if she were required to testify at trial, as required by section 92.53(1), Florida Statutes (1985). Additionally, the trial court erred in failing to make the case-specific findings of fact required by section 92.53(7), Florida Statutes (1985)....

...old. After the child had been removed to a foster home, she revealed the incidents to her foster mother. As a result, the state filed an information in early 1987. In August 1987, when the child was almost nine years old, the state moved pursuant to section 92.53, Florida Statutes (1985), to present videotaped testimony of the child at trial in lieu of live testimony....

...On August 27, 1987, the trial court held an evidentiary hearing on the state's motion. At the onset of the hearing, defense counsel objected to the use of videotaped testimony unless the state proved the elements required for the findings described in section 92.53....

...ld would be much more beneficial and less harmful to the child." Based on this evidence and after a renewed objection by defense counsel, the trial court simply ruled that "the motion is granted." The trial court did not make the finding required by section 92.53(1) "that there is a substantial likelihood that [the child] would suffer at least moderate emotional or mental harm if [she] were required to testify in open court." The trial court also failed to "make specific findings of fact, on the record, as to the basis for its ruling." § 92.53(7), Fla. Stat. (1985). From the record, it does not appear that either defense counsel or the assistant state attorney ever expressly requested the trial court to make the specific findings of fact required by section 92.53(7)....

...ion 90.803(23), Florida Statutes (1985). Although the defendant raises several issues on appeal, we reverse his convictions based solely upon the improper use of the videotaped testimony. [2] The trial court's failure to make the finding required by section 92.53(1), Florida Statutes (1985), is reversible error. Craig; Coy; Leggett. [3] As in Leggett, we cannot excuse the trial court's failure to use the "magic words," because it is not clear that the trial judge employed the proper standard. Leggett, 565 So.2d at 318. The finding under section 92.53(1) is not merely a technical requirement. Instead, it is necessary to insure the constitutionality of the statute. Leggett. The objection by defense counsel at the conclusion of the evidentiary hearing, although somewhat general, is sufficient to preserve for appeal the omission of the section 92.53(1) finding. The trial court's failure to make the case-specific findings of fact on the record as required under section 92.53(7) is also error. We find that the defendant's objections, however, were not sufficient to preserve this issue. Because we have determined that it was reversible error to omit the finding under 92.53(1), we do not need to determine whether the omission of case-specific findings under section 92.53(7) is fundamental error....

...riate to spare child victims of sexual crimes the further trauma of in court testimony face-to-face with the accused. See Glendening v. State, 536 So.2d 212 (Fla.1988), cert. denied, 492 U.S. 907, 109 S.Ct. 3219, 106 L.Ed.2d 569 (Fla.1989); see also § 92.53, Fla....

...Pettis, 520 So.2d 250 (Fla. 1988). *1281 At the hearing on respondent's motion, the trial court addressed the issue of whether the videotape was "hearsay" or "direct testimony" and considered whether section 90.803(23), Florida Statutes (1987), [1] or section 92.53, Florida Statutes (1987), [2] *1282 was applicable to the videotape. The court held that the videotape was "direct testimony" rather than "hearsay," and that section 92.53 was applicable rather than section 90.803(23)....

...tatement. Frequently, defendants' and witnesses' statements to police officers are audio or videotaped. Such statements are still hearsay, however, and must therefore fall within some exception to the hearsay rule in order to be admissible at trial. Section 92.53, Florida Statutes (1987), provides a method whereby an out-of-court statement can be treated as an in-court statement. Section 92.53 is not applicable, however, to an already existing hearsay statement such as the challenged videotape in the instant case....

...are admissible. See Perez v. State, 536 So.2d 206 (Fla. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 3253, 106 L.Ed.2d 599 (1989). Section 90.803(23) comes into play when a videotaped statement is taken at the investigatory stage of a case, whereas section 92.53 comes into play at the pretrial stage, when the state wishes to videotape the testimony of a child to be used in lieu of testimony in court. Because of its initial error regarding the applicability of sections 92.53 and 90.803(23), the trial court never entertained the question of whether the videotape was "admissible" pursuant to section 90.803(23)....

...tatement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement. (c) The court shall make specific findings of fact, on the record, as to the basis of its ruling under this subsection. [2] Section 92.53, Florida Statutes (1987), provides: Sexual abuse or child abuse case; videotaping of testimony of victim or witness under age 16....

...The filing of a petition for certiorari is an apt remedy under these circumstances. 520 So.2d at 253. [4] Fla.R.Civ.P. 1.360. [5] See, for example, the following sections from Florida Statutes: Section 914.16 — Child abuse and sexual abuse victims under age 16; limits on interviews. Section 92.53 — Sexual abuse or child abuse case; videotaping of testimony of victim or witness under age 16....

testimony in the presence of appellant. We agree. Section 92.53(1), Florida Statutes (1997), allows the use

ch.2016-199, § 1, Laws of Fla. (amending section 92.53, Fla. Stat. (2015)). The Committee also proposes

that the applicable standard is contained in section 92.53, Florida Statutes (1993), which requires the

factual assertions.” Id. 4 Feller involved section 92.53, which concerns videotaped testimony as opposed

ensure that the defendant can see the witness. Section 92.53, Florida Statutes (1985), allows videotaping

when it fails to make the findings required by section 92.53, Florida Statutes (1989), prior to allowing

in granting the state’s motion, pursuant to Section 92.53(1), Florida Statutes, to allow videotaping of

the videotape testimony of the victim under section 92.53, Florida Statutes,1 in lieu of live testimony

See ch. 2016-199, § 1, Laws of Fla. (amending section 92.53, Fla. Stat. (2015)). The Committee also proposes