Florida/Georgia Personal Injury & Workers Compensation

...Therefore, *116 because this line of impeachment could properly relate to the witness's bias, we find that the trial court did not abuse its discretion in permitting it. D. Sexual Battery Confession Next, Tanzi claims that the trial court failed to follow the requirements of section 92.565, Florida Statutes (2002), when admitting Tanzi's confession to sexual battery....

...However, the trial court admitted Tanzi's sexual battery confession because it found the existence of a prima facie case (or in other words, the existence of the corpus delicti), making it unnecessary for the trial court to test the reliability of the confession using the procedures outlined in section 92.565....

...l criminal prosecution, we conclude that their statements to the nurse were testimonial under Crawford v. Washington [1] and Davis v. Washington. [2] We also hold that the trial court erred in admitting Mr. Hernandez's confession into evidence under section 92.565, Florida Statutes (2004), because it failed to make the specific findings of fact required by the statute....

...The investigator began work on the assignment on January 31, 2005, but he was unable to find them. He surmised that the child and her parents "could possibly be in Mexico." Prior to trial, the State filed a motion to determine the admissibility in evidence of Mr. Hernandez's statements under section 92.565....

...After the trial court adjudicated Mr. Hernandez guilty and sentenced him, he filed this appeal. IV. THE ISSUES On appeal, Mr. Hernandez raises two issues that have merit. First, he argues that the trial court erred in admitting his oral and written statements into evidence under section 92.565 without first making the specific findings of fact required by the statute....

...Shulman to testify at trial concerning statements made by the child and her parents about the alleged sexual battery. Once again, we agree. We reject the remainder of Mr. Hernandez's arguments without discussion. We will address separately the arguments that have merit. V. THE SECTION 92.565 ISSUE A. Section 92.565 and the Requirement for Specific Findings of Fact The State moved for a pretrial order authorizing it to present proof at trial of Mr. Hernandez's oral and written statements without first establishing the corpus delicti of the crime. [4] The State made its "confession without corpus motion" under the authority of section 92.565....

...Hearsay evidence is admissible during the presentation of evidence at the hearing. In making its determination, the court may consider all relevant corroborating evidence, including the defendant's statements. (4) The court shall make specific findings of fact, on the record, for the basis of its ruling. When section 92.565 is properly invoked, it replaces the corpus delicti doctrine with the trustworthiness doctrine with respect to the offenses listed in the statute. See Geiger v. State, 907 So.2d 668, 674 (Fla. 2d DCA 2005). In the circumstances outlined in section 92.565, "the State may admit a defendant's confession into evidence without first proving corpus delicti if sufficient corroborating evidence is presented that tends to establish the trustworthiness of the confession." Id. The First District has observed that section 92.565 "serves the same general purpose as the corpus delicti rule but it contains a different set of safeguards." Bradley v....

...1st DCA 2005). The statutory safeguards require—among other things—that the trial court must find (1) "that the [S]tate is unable to show the existence of each element of the crime" and (2) "that the defendant's confession or admission is trustworthy." § 92.565(2). See Bradley, 918 So.2d at 340. The trial court must make specific findings of fact on the record in support of its ruling. § 92.565(4). See Bradley, 918 So.2d at 340; State v. Dionne, 814 So.2d 1087, 1091 (Fla. 5th DCA 2002). B. The Application of Section 92.565 to the Facts of this Case In this case, the trial court found that the State was "unable to show the existence of each element of the crime because we don't have a victim who has testified." Although the trial court's finding on this issue failed to consider the effect of Ms....

...Unfortunately, the trial court did not specify what it had heard at the suppression hearing that led it to the conclusion that Mr. Hernandez's statements were trustworthy. The statute mandates "specific findings of fact, on the record," stating the basis of the trial court's ruling. § 92.565(4)....

...cord, prior to the admission of hearsay statements by child victims of abuse in accordance with section 90.803(23), Florida Statutes (1989)). Because the trial court failed to make the specific findings of fact on the record that were required under section 92.565, we are constrained to reverse and remand for a new trial. On remand, the trial court may revisit the issue of the admissibility of Mr. Hernandez's statements under section 92.565....

...Instead, the trial court appears to have relied exclusively on the content of Mr. Hernandez's statements and the circumstances under which they were made to form an opinion about their trustworthiness. Before a trial court may admit a defendant's confession or admission into evidence under section 92.565, the State "must prove by a preponderance of evidence that there is sufficient corroborating evidence that tends to establish the trustworthiness of the statement by the defendant." § 92.565(3) (emphasis added)....

...To "corroborate" means "[t]o strengthen or support with other evidence; make more certain." The American Heritage Dictionary of the English Language 412 (4th ed. 2000). Thus a confession cannot corroborate itself. This court has previously held that a statement cannot be deemed "trustworthy" under section 92.565 absent independent evidence establishing that a crime occurred or that the defendant's admissions to criminal conduct are trustworthy. See Geiger, 907 So.2d at 674-76. [5] See also B.P. v. State, 815 So.2d 728, 730 (Fla. 5th DCA 2002) (reversing conviction where the defendant's confession was admitted under section 92.565 in the absence of any other evidence that the offense charged had been committed); Peterson v. State, 810 So.2d 1095, 1098 (Fla. 5th DCA 2002) (detailing the independent evidence considered by the trial court that corroborated the defendant's confession before the confession was admitted into evidence under section 92.565)....

...Shulman's deposition was the only independent evidence that *1277 the State offered at the motion hearing to corroborate Mr. Hernandez's statements. For this reason, the trial court may wish to reconsider its decision to reject Ms. Shulman's deposition testimony when it revisits the State's motion under section 92.565....

...nt of the declarations by the child and her parents about the incident. In this context, any consideration by the trial court of these declarations would be for the limited purpose of determining the admissibility of Mr. Hernandez's statements under section 92.565....

...Lukashow, Assistant Public Defender, Daytona Beach, for Appellee. SAWAYA, J. The State appeals the trial court's order granting David Dionne's motion to suppress his confession following his arrest for sexual battery. [1] The trial court held that application of section 92.565, Florida Statutes (2000), which was enacted after the date of Dionne's alleged incident, violates the Ex Post Facto Clause of both the United States and Florida Constitutions....

...State could not independently establish the corpus delicti of the crime because the victim was asleep during the alleged sexual battery. A hearing on the motion was held in November 2000. Initially, the trial court denied Dionne's motion pursuant to section 92.565, Florida Statutes (2000), which became effective on June 5, 2000, and provides in pertinent part: (2) In any criminal action in which the defendant is charged with a crime against a victim ......

...Factors which may be relevant in determining whether the state is unable to show the existence of each element of the crime include, but are not limited to, the fact that, at the time the crime was committed, the victim was: (a) Physically helpless, mentally incapacitated, or mentally defective.... § 92.565(2)(a), Fla. Stat. (2000). Dionne then filed a supplemental motion to suppress his confession, arguing, inter alia, that the application of section 92.565 to his case violated the Ex Post Facto Clause of the United States and Florida Constitutions. The trial court agreed and entered an order granting Dionne's motion. The issue we must resolve, which appears to be one of first impression, is whether retrospective application of section 92.565 violates the Ex Post Facto Clause contained in the federal and Florida constitutions. In order to resolve this issue, we will discuss the provisions of section 92.565, address the general categories of ex post facto laws, and analyze whether retrospective application of section 92.565 fits into one of the prohibited categories. Section 92.565: Elimination Of The Corpus Delicti Requirement To Admit A Confession In Cases Involving Certain Designated Offenses As a predicate to the admission of a confession into evidence, Florida law *1091 generally requires that the corpus delicti be established independently of the confession....

...01. As this court stated in McArthur, "[t]he state's burden of proof `beyond a reasonable doubt' is a requirement to establish the defendant's guilt, not to authorize admission of his confession." 793 So.2d at 1193 (quoting Allen, 335 So.2d at 825). Section 92.565 eliminates corpus delicti as a predicate for the admission of a defendant's confession when the state is unable to show the existence of each element of the offense because the victim is either physically helpless, mentally incapacitated, mentally defective, or physically incapacitated. These factors are not exclusive. Once this predicate is established, "the state must prove by a preponderance of the evidence that there is sufficient corroborating evidence that tends to establish the trustworthiness of the statement...." § 92.565(3), Fla. Stat. (2000). The hearing must be conducted by the trial judge outside of the presence of the jury. § 92.565(2), Fla. Stat. (2000). Specific findings of fact must be made by the trial judge on the record to support his or her ruling. § 92.565(4), Fla....

...The purpose of the corpus delicti predicate is to insure that "`no person be convicted out of derangement, mistake, or official fabrication.'" McArthur, 793 So.2d at 1192 (quoting Allen, 335 So.2d at 825) (footnote omitted). We find that the trustworthiness doctrine under section 92.565 serves the same purpose....

...tilized as the predicate to admit a confession, the state is obligated to prove each element of the charged offense beyond and to exclusion of every reasonable doubt. Id. Thus we conclude that, like corpus delicti, the trustworthiness doctrine under section 92.565 is a procedural mechanism utilized to admit a confession into evidence. Having discussed the provisions of section 92.565, we must next determine whether retrospective application of the statute fits into one of the established categories of ex post facto laws....

...on against ex post facto laws because it "only relates to the admission of evidence and is thus procedural." 656 So.2d at 439. Next we analyze the legal principles we have just discussed relative to ex post facto laws and our conclusions relating to section 92.565 to determine whether its retrospective application is prohibited. Analysis Our analysis of the provisions of section 92.565 lead us to conclude that it is a procedural rule of evidence that merely changes the predicate that must be established to enter a defendant's confession into evidence. Thus, section 92.565 regulates the mode in which the facts constituting guilt may be placed before the jury....

...It does not reduce the quantum of evidence necessary for a conviction under section 794.011(5), eliminate an element of the offense prescribed by that statute, increase *1095 the punishment for that offense, or lower the burden of proof necessary for a conviction. Because section 92.565 only affects a procedural change relating to the admissibility of evidence (a confession), it may be applied retrospectively without violating the Ex Post Facto Clause. Dionne argues that Carmell is dispositive and supports the trial court's finding that retrospective application of section 92.565 does violate the Ex Post Facto Clause. We disagree and find to the contrary that Carmell supports the State's position. Unlike the statute involved in Carmell, section 92.565 does not, as we have just indicated, speak in terms of the evidence necessary to support a conviction....

...Evidence admissibility rules do not go to the general issue of guilt, nor to whether a conviction, as a matter of law, may be sustained." 529 U.S. at 546, 120 S.Ct. 1620. Here, as the State correctly argues, regardless of whether Dionne's confession is admissible under section 92.565, it still must prove by evidence other than Dionne's confession that he committed the alleged sexual battery beyond a reasonable doubt....

...estimony of a convicted felon as in Hopt, a handwriting expert as in Thompson, victim impact evidence as in Windom, or hearsay statements of a child victim of sexual abuse as in Glendening, are significantly different from the changes promulgated by section 92.565 that allow the confession of the defendant into evidence without the necessity of establishing corpus delicti as a predicate....

...If there is a notable difference, it is that Hopt, Thompson, Windom, and Glendening permitted retrospective application of statutes that made a total change in the law by allowing the admission of evidence that was not allowed before their enactment. Section 92.565 merely changes the procedure for admission of a confession that was otherwise admissible before it was enacted. If Hopt, Thompson, Windom, and Glendening are examples of permissible changes in the law that may properly be applied retrospectively, surely it must be permissible to permit retrospective application of the procedural changes implemented by section 92.565 without violating the Ex Post Facto Clause of the federal and Florida constitutions. Conclusion We conclude that section 92.565 does not fall into any of the four categories of ex post facto laws set forth in Carmell and Glendening. Because section 92.565 is a rule of evidence that addresses the question of admissibility rather than the quantum of evidence required for a conviction, it is not an ex post facto law and its retrospective application to admit Dionne's confession is permissible....

...curred while she was asleep because such testimony would be speculation. The trial court did not, however, preclude her from testifying about facts within her personal knowledge. This part of the order is affirmed without further discussion. [2] See § 92.565(3), Fla....

...In Harris, the court suggested that the trustworthiness doctrine may be as strict or stricter than corpus delicti and that application of both may lead to identical results in many cases. 938 F.2d at 410 n. 7. We need not engage in a debate over which is preferable. We simply hold that section 92.565, which adopts the trustworthiness doctrine as a predicate for admission of a confession, is a procedural rule of evidence and its retrospective application does not offend the Ex Post Facto Clause.

...He argues that the trial court erred in allowing the jury to hear his extrajudicial confession, because the state had no other evidence of sexual union and thus no independent proof that the crime of capital sexual battery was committed. We conclude that the confession was properly admitted under section 92.565, Florida Statutes, which creates an exception to the general rule requiring the state to prove the corpus delicti of a crime as a predicate to the introduction of a confession....

...genitals with his hand. Without the confession, defense counsel argued, the state had no evidence that the crime of capital sexual battery had been committed. The trial court overruled this objection and held that the confession was admissible under section 92.565, Florida Statutes....

...If the outcome of the present case depended on the application of the corpus delicti rule as established in the case law, the defendant would have a good argument that his confession should have been excluded. *340 However, this case is not controlled by the general rule, but rather by section 92.565, Florida Statutes, which is as follows: 92.565....

...The state is not also required to present independent proof of each element of the crime, as it would be under the corpus delicti rule. An element of the crime may be established by the confession itself, so long as the corroborating evidence makes the confession trustworthy. Section 92.565 serves the same general purpose as the corpus delicti rule but it contains a different set of safeguards....

...hat he was truthful about the time and place of the crime, but that for some reason he added a false detail that made the crime more serious. This brings us to the more difficult question of whether the state met all of the requirements for invoking section 92.565 in the present case....

...The word "may" was not used to signify that the listed factors may or may not apply, depending on whether they are justified, but rather to signify that the statute is not limited to those factors. On a closely related point, the defendant also maintains that section 92.565 is inapplicable if the state's inability to prove an element of the crime is not related to the victim's young age. He argues that the reason the victim was unable to testify to sexual union was not that he was immature, inarticulate, or shy, but rather that it simply did not occur. We reject this interpretation as well. Section 92.565, like the capital sexual battery statute itself, sets a definite limit at the age of twelve. Whether a child under this age is expressive or articulate is immaterial. For these reasons, we hold that the defendant's confession was properly admitted in evidence under the provisions of section 92.565, Florida Statutes....

...Guardiano, Daytona Beach, for Appellee. TORPY, J. David Eric Hobbs, Appellee, stands accused of sexual activity with a child by a person in a familial relationship and lewd or lascivious battery. The sole issue on appeal concerns the admissibility of Appellee's confession pursuant to section 92.565, Florida Statutes (2007), which eliminates the corpus delicti precondition for introduction of admissions and confessions in sexual abuse cases when the state is otherwise unable to prove the crime....

...Prior to the recantation, however, police had interviewed Appellee, and he provided a recorded confession. As a result of the recantation, the State filed a pretrial motion seeking to admit Appellee's confession without first proving each element of the charged offenses. The State's motion was based on section 92.565(2), Florida Statutes, which provides in pertinent part: (2) In any criminal action in which the defendant is charged with a crime ....

...mitted, the victim was: (a) Physically helpless, mentally incapacitated, or mentally defective, as those terms are defined in s. 794.011; (b) Physically incapacitated due to age, infirmity, or any other cause; or *1121 (c) Less than 12 years of age. § 92.565(2), Fla....

...e to prove a crime because the victim is incapacitated or under the age of twelve, which the State concedes is not the case here. Appellee's position is grounded in the First District's decision in Kelly, which, on indistinguishable facts, held that section 92.565 only applies when the state is unable to prove a crime because of some disability on the part of the victim....

...Without identifying any ambiguity in the statute, the Kelly majority employed the statutory construction principle of ejusdem generis and concluded simply: Applying the principle of ejusdem generis, it becomes clear that a prerequisite to the application of section 92.565(2) is the prosecution's inability to independently prove the crime due to some disability on the part of the victim....

...islative intent was improper. The dissent concluded: In my view, the critical focus of the statute is the trustworthiness of the confession, not the particular reason why the State cannot prove an element of the crime. All that is required to invoke section 92.565 is that the trial court find that: (1) the defendant is charged with a crime involving sexual abuse of another; (2) the State is unable to show the existence of at least one element of the crime; and (3) the defendant's confession or admission is trustworthy. All three factors are present here; therefore, the trial court properly admitted Appellant's confession into evidence. I would hold that section 92.565, Florida Statutes (2005), applies in situations where the victim is unwilling to testify. The factors listed in section 92.565(2) are not an exhaustive list, but merely provide examples of the types of situations that "may be relevant" when deciding whether to invoke the statute....

...Cletus Geiger appeals the conviction and sentence entered following his no contest plea to sexual battery on a mentally defective person. He reserved the right to appeal the denial of his motion to dismiss and his motion challenging the constitutionality of section 92.565, Florida Statutes (2003), which addresses the admissibility of confessions in sexual abuse cases. The State filed charges against Geiger after he made incriminating statements. We conclude that under section 92.565, the statements would have been inadmissible at trial due to the absence of corroborating evidence....

...t should have granted Geiger's motion to dismiss. Therefore we reverse and remand for entry of an order of dismissal. Because this case can be resolved without determining constitutional issues, we do not address Geiger's constitutional challenge to section 92.565....

...ed crimes. The motion concluded that the undisputed facts did not establish a prima facie case of guilt. Both the State and Geiger filed motions for a hearing to determine the trustworthiness of Geiger's statements for admission at trial pursuant to section 92.565....

...that the only evidence that the alleged incidents occurred was Geiger's statements. The State added that "there is no known forensic evidence indicating that sexual contact took place" and that medical examinations on the victims were inconclusive. SECTION 92.565 AND THE EVIDENTIARY HEARING Section 92.565(2) provides that when a defendant is charged with committing a specified crime, including sexual battery, the defendant's memorialized confession or admission is admissible during trial without the state having to prove a corpus delict...

...as committed, the victim was: (a) Physically helpless, mentally incapacitated, or mentally defective, as those terms are defined in s. 794.011; (b) Physically incapacitated due to age, infirmity, or any other cause; or (c) Less than 12 years of age. Section 92.565(3) addresses the need for corroborating evidence of the trustworthiness of the confession or admission as follows: Before the court admits the defendant's confession or admission, the state must prove by a preponderance of evidence tha...

...statement by the defendant. Hearsay evidence is admissible during the presentation of evidence at the hearing. In making its determination, the court may consider all relevant corroborating evidence, including the defendant's statements. Pursuant to section 92.565, the trial court held an evidentiary hearing to determine the trustworthiness of Geiger's statements....

...and probably not the inclination, and so that's why that letter was a request to have his hours changed." The trial court concluded that for those reasons, it was "satisfied by a preponderance of the evidence that the statement is trustworthy" under section 92.565. The trial court later entered its orders denying Geiger's motion to dismiss the sexual battery charge and his motion challenging the constitutionality of section 92.565....

...ibility did in fact occur, and that some person was criminally culpable.... [O]ne uncorroborated admission by the accused does not, standing alone, corroborate an unverified confession."). The Fifth District Court of Appeal has noted that "[s]ection 92.565 eliminates corpus delicti as a predicate for the admission of a defendant's confession when the state is unable to show the existence of each element of the offense because the victim is either physically helpless, mentally incapacitated, mentally defective, or physically incapacitated." State v....

...Concerning the difference between the two approaches, the court explained "that the corroboration aspect of corpus delicti is more concerned with the elements of the offense whereas the trustworthiness doctrine is concerned with the trustworthiness of the statements contained within the confession." Id. We agree that section 92.565 replaces the corpus delicti rule with the trustworthiness doctrine with respect to the enumerated offenses....

...endent corroborating evidence. The letter itself cites health and family benefits as the basis for the request. Absent Geiger's oral statements, the request for a shift change is at least as consistent with an innocent motivation as any devious one. Section 92.565(3) provides that the State must prove "that there is sufficient corroborating evidence that tends to establish the trustworthiness" of the defendant's statement and that the court "may consider all relevant corroborating evidence, incl...

...criminal conduct were trustworthy. CONCLUSION Because the State did not present competent, substantial evidence to establish that Geiger's statements were trustworthy, the trial court erred in holding that the statements were admissible pursuant to section 92.565....

...Therefore, we reverse Geiger's conviction and remand with instructions that the trial court enter an order dismissing the sexual battery charge. Reversed and remanded. SALCINES and WALLACE, JJ., Concur. NOTES [1] Apparently, the diet involves eating grains, garlic, celery, and raw and cooked onions. [2] Although section 92.565 requires that a trial court determine whether a defendant's confession or admission is trustworthy, the trial court used the word "reliability" in making its findings....

...Because the State cannot prove beyond a reasonable doubt that the error did not contribute to the verdict as to Count I, we reverse and remand for a new trial as to this count only. Affirmed in part; reversed in part. NORTHCUTT, KELLY, and WALLACE, JJ., Concur. NOTES [1] The parties did not discuss section 92.565, Florida Statutes (2003), which permits a defendant's confession or admission in a sexual abuse case to be admitted into evidence absent proof of the corpus delicti of the crime if the court finds that the confession or admission is trustworthy. See State v. Dionne, 814 So.2d 1087 (Fla. 5th DCA 2002) (holding that section 92.565 applies retroactively to evidence of crimes committed before the statute's effective date of June 5, 2000). Section 92.565 is an exception to the rule that before evidence of a defendant's confession or admission can be admitted, the State must independently establish prima facie evidence that each element of the offense occurred through the criminal agency of a person. See generally Franqui v. State, 699 So.2d 1312, 1317 (Fla.1997). Because section 92.565 was not raised below, we have no occasion to address it here....

...ges. In any event, the trial court did not believe the victims' testimony and found appellant not guilty as to the sexual battery charges. Corpus delicti was not established before the statement was received. Even so, the court recognized that under section 92.565, Florida Statutes, it is no longer necessary to establish a corpus delicti in sex offenses....

...The Fifth District Court of Appeal certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Kelly v. State, 946 So.2d 591 (Fla. 1st DCA 2006). The conflict issue is whether, for purposes of admitting a defendant's statement pursuant to section 92.565, Florida Statutes, a victim's recantation is relevant to the trial court's determination of whether the State is unable to show the existence of each element of the charged offense. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We hold that the plain language of section 92.565 does not prohibit a trial *1026 court from considering a victim's recantation as a factor relevant to whether the State is unable to show the elements of the crime....

...Prior to the recantation, Hobbs gave a tape-recorded statement to law enforcement officers. In December 2006, Hobbs was charged by information with sexual activity with a child by a person in a familial relationship and lewd or lascivious battery. In January 2007, the State filed a pretrial motion pursuant to section 92.565, Florida Statutes (2007), seeking to admit Hobbs' statement without first showing the existence of each element of the charged offenses. Section 92.565, Florida Statutes (2007), titled "Admissibility of confession in sexual abuse cases," provides: (1) As used in this section, the term "sexual abuse" means an act of a sexual nature or sexual act that may be prosecuted under any law of this state, including those offenses specifically designated in subsection (2)....

...In making its determination, the court may consider all relevant corroborating evidence, including the defendant's statements. (4) The court shall make specific findings of fact, on the record, for the basis of its ruling. The State argued that the trial court was not limited to considering solely the factors listed in section 92.565(2) when determining if the State was unable to show the elements of the crime....

...nd wife relationship between the victim and her father. The State also argued that there was sufficient corroborating evidence to demonstrate the trustworthiness of defendant Hobbs' statement. *1027 In response, Hobbs argued that the requirements of section 92.565 were not satisfied in his case. He asserted that the trial court should follow the First District's decision in Kelly, where in similar factual circumstances, the First District strictly construed section 92.565 and held that the statute is applicable when the State is unable to show the existence of each element of the crime due to a disability of the victim that existed at the time of the alleged offense. The trial court held a hearing on the motion to admit the statement. The State conceded that none of the factors listed in section 92.565(2) applied to this case and that Kelly was contrary to the State's position. Relying on Kelly and Bradley v. State, 918 So.2d 337, 340 (Fla. 1st DCA 2005) (holding that prerequisite to application of section 92.565 is State's inability to independently prove elements of alleged offense due to disability of victim), the trial court ruled that defendant Hobbs' statement was inadmissible....

...created a disability." State v. Hobbs, Case No.: 2006-CF-15914 (Fla. 9th Cir. order filed Mar. 21, 2007) at 2-3. The trial court reasoned that a victim's voluntary refusal to cooperate "is not akin to the mental and/or physical disability set out in section 92.565." Id....

...Any contrary interpretation would necessitate that we erroneously deviate from the plain text and completely disregard the phrase, "but are not limited to." Id. at 1121-22. The Fifth District remanded with instructions that the trial court conduct a new hearing and make factual findings as required by section 92.565 and certified conflict with Kelly....

...as committed, the victim was: (a) Physically helpless, mentally incapacitated, or mentally defective, as those terms are defined in s. 794.011; (b) Physically incapacitated due to age, infirmity, or any other cause; or (c) Less than 12 years of age. § 92.565(2), Fla....

...The enumerated factors provide guidance to trial courts in making the factual findings required by the statute. As explained by the Legislature, the victim's capacity at the time of the alleged offense may be relevant to whether the State is unable to show the elements of the crime. However, the plain language of section 92.565 does not limit the trial court to considering only the victim's physical and mental capacity at the time that the crime was committed....

...To the contrary, the phrase "but are not limited to" plainly expresses that in determining whether the State is unable to show the existence of the elements of the alleged offense without the defendant's statement, the trial court may consider factors other than those set out in section 92.565. Thus, we hold that a trial court may consider a victim's recantation when determining whether the State is unable to prove the existence of the elements of the crime for purposes of admitting a statement pursuant to section 92.565....

...[1] III. CONCLUSION For the reasons stated in this opinion, we approve the Fifth District's decision remanding this case to the trial court to conduct a new hearing and to make specific factual findings as to whether Hobbs' statement may be admitted under section 92.565. We disapprove the First District's decision in Kelly to the extent that the First District concluded that the State is unable to show the existence of the elements of the crime for purposes of section 92.565 only where the State's inability is caused by mental or physical disability of the victim at the time of the alleged offense. It is so ordered. QUINCE, C.J., and ANSTEAD, PARIENTE, LEWIS, CANADY, and POLSTON, JJ., concur. NOTES [1] While our decision is based on the plain language of section 92.565, the legislative history of the statute further supports our holding that a trial court may consider a victim's recantation in determining whether the State is unable to show the existence of the elements of the crime. A legislative staff analysis of section 92.565 drafted just prior to its enactment explained that the purpose or intent of the statute was to replace the common law corpus delicti rule with the trustworthiness doctrine with respect to the enumerated sexual offenses....

...g outside the presence of the jury and finds that the confession or admission is trustworthy."). This intent to replace the corpus delicti rule with a trustworthiness standard for certain types of crimes would be thwarted were the Court to interpret section 92.565 as replacing corpus delicti only in cases where the victim is disabled.

...PER CURIAM. In this direct appeal from conviction and sentence for sexual abuse crimes, Appellant challenges the dispositive issue of whether the trial court erred by allowing the state to introduce Appellant's confession into evidence pursuant to section 92.565(2), Florida Statutes (2005). We agree with Appellant that the requirements of section 92.565(2) were not met and that the trial court erred by admitting Appellant's confession....

...Appellant was charged with sexual abuse crimes against a minor. Appellant confessed to the charges. Subsequently, the victim recanted and stated that she would not cooperate with the prosecution nor would she testify at trial. The state sought to admit Appellant's confession pursuant to section 92.565(2). Section 92.565(2) creates an exception to the corpus delicti rule for certain sexual abuse crimes....

...e state to prove the actus reus of a crime by independent means before the state can introduce into evidence any extrajudicial confessions of an accused. Lambright v. State, 34 Fla. 564, 16 So. 582, 585 (Fla.1894). For qualifying sexual abuse cases, section 92.565(2) allows the state to introduce a confession into evidence if the trial court determines that the confession is trustworthy and that the state is unable to establish an element of the crime. The statute provides trial courts with a non-exhaustive list of "factors which may be relevant in determining whether the state is unable to show the existence of each element of the crime." § 92.565(2), Fla....

...When the trial court ruled that Appellant's confession could be admitted into evidence, Appellant pled no contest to the charges, but reserved the right to appeal this issue, which was stipulated to be dispositive. For the following reasons, the trial court erred in admitting Appellant's confession. Because section 92.565 is in derogation of the common law corpus delicti rule, this statute must be "strictly construed, and should not be interpreted to displace the common law further than is necessary." Tillman v....

...he general words to be used in their unrestricted sense, they would not have made mention of the particular classes.")(internal citations omitted). Applying the principle of ejusdem generis, it becomes clear that a prerequisite to the application of section 92.565(2) is the prosecution's inability to independently prove the crime due to some disability on the part of the victim....

...1st DCA 2005). As enunciated in the portion of the statute introducing the list of factors to be considered by the trial court, the disability which prevents the state from proving the elements of the crime must exist at the time the crime is committed. See § 92.565(2), Fla....

...Because the state has stipulated that the confession issue is dispositive, this matter is remanded with directions for Appellant to be discharged. ALLEN and DAVIS, JJ., concur; THOMAS, J., dissents with opinion. THOMAS, J., dissenting. I respectfully dissent. In my view, the majority opinion overlooks the broad language of section 92.565, Florida Statutes (2005), which eliminates the corpus delicti rule in the prosecution of sexual crimes, and it also misconstrues language meant only to provide guidance to trial courts in deciding whether the State has met its evidentiary burden to invoke the statute. Section 92.565, Florida Statutes (2005), by its specific terms, applies to a wide range of crimes involving sexual assault, including incest, sexual performance by a child, aggravated child abuse involving sexual abuse, and contributing to the delinquency or dependency of a minor involving sexual abuse. In addition, section 92.565 specifically applies to "any other crime involving sexual abuse of another." By today's decision, the statute will essentially now read as follows: Where the State cannot prove an element of the crime in cases involving sexual abuse, t...

...ecause the detective told her what to say. She also said she would refuse to cooperate in the investigation and would not testify at trial, even if compelled to appear by subpoena. The State filed a motion to admit Appellant's confession pursuant to section 92.565, Florida Statutes (2005), arguing the confession was admissible because in the victim's deposition, she recanted her previous statements, denied that any abuse occurred, and stated that she would refuse to appear in court and testify against Appellant....

...ing at the church between herself, Appellant, Appellant's wife, and the victim. The trial court granted the State's motion to admit Appellant's confession into evidence, finding the confession trustworthy by a preponderance of the evidence. Analysis Section 92.565, Florida Statutes (2005), eliminates the State's burden of establishing *595 corpus delicti in certain criminal cases involving sexual abuse: 1) As used in this section, the term "sexual abuse" means an act of a sexual nature or sexual...

...as committed, the victim was: (a) Physically helpless, mentally incapacitated, or mentally defective, as those terms are defined in s. 794.011; (b) Physically incapacitated due to age, infirmity, or any other cause; or (c) Less than 12 years of age. § 92.565, Fla....

...Smiley, 927 So.2d 1000, 1003 (Fla. 4th DCA 2006) (discussing legislation eliminating common law duty to retreat). Acting on its constitutional authority, the legislature eliminated the rule of corpus delicti under certain conditions. As we noted in Bradley v. State , section 92.565, Florida Statutes (2005), eliminates the need to establish the corpus delicti of the crime as a predicate to admitting the defendant's confession in evidence....

...An element of the crime may be established by the confession itself, so long as the corroborating evidence makes the confession trustworthy. 918 So.2d 337, 340 (Fla. 1st DCA 2005) (citations omitted). As pointed out by the majority, however, we further stated in Bradley that the legislature included in section 92.565 a requirement that "the state is unable as a result of some disability on the part of the victim to prove an element of the crime." Id....

...Biscayne Kennel Club v. Bd. of Bus. Regulation, 276 So.2d 823, 826 (Fla.1973) (explaining where a district court's statement was not essential to the court's decision, the statement is without force as precedent). In Bradley, we rejected the defendant's argument that section 92.565(2) did not automatically apply where the victim was under 12 years of age....

...The word "may" was not used to signify that the listed factors may or may not apply, depending on whether they are justified, but rather to signify that the statute is not limited to those factors. Id. (emphasis added). Thus, we acknowledged that the application of section 92.565 is not limited to only those situations listed in the provision itself....

...State is unable to show the existence of each element of the crime as the result of the victim's refusal to cooperate with the prosecution. In my view, the statutory conditions were met and the trial court correctly admitted Appellant's confession. Section 92.565, Florida Statutes (2005), authorizes a trial court to admit confessions in certain criminal cases involving sexual abuse where the State is unable to present evidence of each element of the crime and the trial court finds the confession trustworthy....

...list of examples to assist trial courts in determining whether the State had shown it could not otherwise prosecute a case unless the confession was admitted. Had the Legislature intended to make the list all inclusive, it would have simply done so. Section 92.565 unambiguously states that it is not limited to the listed situations, therefore, there is no need to apply the rule of ejusdem generis to interpret the language....

...See id., § 47.22, at 297-298 ("A final qualification on the doctrine is that the general words are not restricted in meaning to objects of the same kind . . . if there is a clear manifestation of a contrary intent. ") (emphasis added). In my view, if the legislature intended to limit application of section 92.565, Florida Statutes, to only those types of situations listed, the statute would state that it applied only where disabilities such as age or incapacity existed....

...604 So.2d 452, 454-455 (Fla.1992) (quoting Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, 694-95 (1918)). In reaching my conclusion, I rely on the plain meaning of the phrases "factors which may be relevant" and "include, but are not limited to" found in section 92.565....

...ose types of cases listed, and neither would I. In my view, the critical focus of the statute is the trustworthiness of the confession, *598 not the particular reason why the State cannot prove an element of the crime. All that is required to invoke section 92.565 is that the trial court find that: (1) the defendant is charged with a crime involving sexual abuse of another; (2) the State is unable to show the existence of at least one element of the crime; and (3) the defendant's confession or admission is trustworthy. All three factors are present here; therefore, the trial court properly admitted Appellant's confession into evidence. I would hold that section 92.565, Florida Statutes (2005), applies in situations where the victim is unwilling to testify. The factors listed in section 92.565(2) are not an exhaustive list, but merely provide examples of the types of situations that "may be relevant" when deciding whether to invoke the statute....

...*701 Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellee. LEVINE, J. The issue presented on appeal is whether appellant's confession to the police was properly admitted into evidence at trial pursuant to section 92.565, Florida Statutes, despite the fact that the state was unable to establish the corpus delicti for the crime of sexual battery of a child, W.B. We find that the trial court did not err in determining that appellant's statement was trustworthy and as such admissible under section 92.565, and we affirm appellant's conviction....

...ere he confessed to having sexual relations with both P.D. and W.B. At a pretrial hearing, the state filed a motion to admit appellant's statement, without establishing the corpus delicti of the crime of sexual battery as to W.B. The state relied on section 92.565, Florida Statutes, which states: In any criminal action in which the defendant is charged with a crime against a victim under s....

...o admit them as to W.B. The trial court found the detailed statements by appellant, including the frequency of the encounters and the specific details of the intimate encounter between P.D. and appellant, satisfied the trustworthiness requirement of section 92.565....

...confession. The Florida Supreme Court has held that "a trial court may consider a victim's recantation when determining whether the State is unable to prove the existence of the elements of the crime for purposes of admitting a statement pursuant to section 92.565." Hobbs v....

...Therefore, since the state cannot prove the corpus delicti of the crime concerning W.B., the state must then "prove by a preponderance of evidence that there is sufficient corroborating evidence that tends to establish the trustworthiness" of the defendant's confession. § 92.565(3), Fla....

no application here! A proper application of section 92.565 and our holding in Geiger compels reversal

...State, 699 So.2d 662 (Fla.1997), cert. denied, 522 U.S. 1129, 118 S.Ct. 1079, 140 L.Ed.2d 137 (1998); Johnson v. State, 696 So.2d 326 (Fla.1997), cert. denied, 522 U.S. 1095, 118 S.Ct. 892, 139 L.Ed.2d 878 (1998). Second, Peterson urges that his confession was not admissible under section 92.565, a relatively new statute effective June 5, 2000, which modifies the "corpus delicti" rule, [1] regarding the admission of confessions in sexual abuse cases where the state has not presented independent evidence for all of the elements of the crime....

...Hobbs, 974 So.2d 1119, 1121 (Fla. 5th DCA 2008), affd sub nom., 999 So.2d 1025 (Fla.2008). In Hobbs, the court interpreted the phrase "include, but are not limited to." The court's interpretation is on point and instructive. The Fifth District in Hobbs construed section 92.565, Florida Statutes, which eliminates the corpus delicti precondition for the introduction of a confession in sexual abuse cases when the State is otherwise unable to prove the crime. See Hobbs, 974 So.2d at 1120. Section 92.565 provides that factors relevant in determining whether the State is unable to show the existence of each element of a crime "include, but are not limited to" the fact that, when the crime was committed, the victim was "(a) Physically helpless, mentally incapacitated, or mentally defective ...; (b) Physically incapacitated due to age, infirmity, or any other cause; or (c) Less than 12 years of age." § 92.565(2), Fla....

...The Hobbs court determined the phrase "include, but are not limited to" was plain, unambiguous, and thus not subject to the maxims of statutory construction. See Hobbs, 974 So.2d at 1121-22 (citing Kelly v. State, 946 So.2d 591, 593-98 (Fla. 1st DCA 2006) (Thomas J., dissenting)). The court held that the list enumerated in section 92.565(2) was a list of factors a trial court could consider, but that the list was not exhaustive....

Florida, appeals the trial court’s reliance on section 92.565, Florida Statutes (2000), to grant the defense’s

even if those testimonies were insufficient, section 92.565 has eliminated corpus delicti as a predicate

(2001), and by admitting his confession under section 92.565, Florida Statutes (2001). We also affirm Brueckman’s

the confession was trustworthy as required by section 92.565, Florida Statutes; and (2) whether his dual

made to introduce the confession pursuant to section 92.565, Florida Statutes (2011).

...oduction of the child-victim's hearsay statements to her mother and to two members of the child protection team. We find no error in the trial court's *1090 detailed orders denying these motions. We further find that the trial court properly applied section 92.565, Florida Statutes (2006), in permitting the....

Appellant’s confession into evidence under section 92.565, Florida Statutes (2005), and does not assert

received. Even so, the court recognized that under section 92.565, Florida Statutes, it is no longer necessary

that it had failed to meet its burden under section 92.565, Florida Statutes (2023), as interpreted by

confession into evidence at trial pursuant to section 92.565, Florida Statutes (2021). I respectfully dissent