Florida/Georgia Personal Injury & Workers Compensation

...Schultz, Assistant Attorney General, West Palm Beach, for appellee. EN BANC WARNER, J. Appellant challenges his sentence following revocation of community control on the ground that the court erred in closing the courtroom during his revocation hearing pursuant to section 918.16, Florida Statutes (2000)....

...someone under the age of sixteen and leaving his residence without permission. During the revocation hearing, the state called the victim of the alleged lewd act, and the prosecutor asked the judge to "clear the courtroom pursuant to Florida Statute 918.16, a sex victim testifying." The court instructed everyone to step outside....

...ternatives to closing the proceedings; and fourth, the court must make findings adequate to support the closure. Pritchett v. State, 566 So.2d 6, 7 (Fla. 2d DCA 1990) (citing Waller v. Georgia, 467 U.S. 39, 47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)). Section 918.16 requires the closure of a courtroom when a victim of a sex offense testifies and provides: (1) ......

...witness advocates designated by the state attorney's office. (Emphasis added). In Clements v. State, 742 So.2d 338, 341 (Fla. 5th DCA 1999), rev. dismissed as improvidently granted, 782 So.2d 868 (Fla. 2001), the court held that closure pursuant to section 918.16, which exempts from exclusion certain members of the public, particularly news reporters, was a partial closure of a trial and the four-factor Waller inquiry was unnecessary. The court reasoned that, in enacting section 918.16, the legislature has implicitly reviewed the Waller factors and found that a compelling state interest exists in protecting child sexual battery victims....

...Over Pritchett's objection, the trial court ordered that the courtroom be cleared of all spectators during the minor victim's testimony. On appeal, Pritchett argued that the court abridged his Sixth Amendment right to a public trial when it ordered the courtroom to be cleared of all spectators, pursuant to section 918.16, Florida Statutes (1987)....

...does not allow us to forego procedures that *8 insure that the accused is afforded due process. Therefore, we reverse the sentence and judgment, and remand for a new trial consistent with this opinion. SCHEB, A.C.J., and HALL, J., concur. NOTES [1] Section 918.16, Florida Statutes (1987), provides: In the trial of any case, civil or criminal, when any person under the age of 16 is testifying concerning any sex offense, the court shall clear the courtroom of all persons except parties to the cau...

...On appeal, Clements argues that the trial court committed reversible error in a number of instances. While we disagree with his contentions, we find one issue, the trial court's partial closure of the courtroom while the child victim testified, merits discussion. Pursuant to section 918.16, Florida Statutes (1997) [1] the State asked that the courtroom be cleared before the victim, who was fourteen years old at the time of trial, testified. Defense counsel objected and asked the trial court to hold a hearing to determine the necessity of exclusion and consider alternative methods so as to preserve Clements' constitutional rights. [2] The trial court read section 918.16 as mandatory and overruled the objection. Defense counsel unsuccessfully moved for mistrial. The court ordered that all persons not permitted by section 918.16 leave the courtroom....

...Pritchett, 566 So.2d at 7. Thornton was factually almost identical to Pritchett. Again, the trial court closed the courtroom to everyone without making the Waller four-factor inquiry and without regard to the persons allowed to remain in the courtroom pursuant to section 918.16, and again the appellate court reversed. Thornton and Pritchett are easily distinguishable from the instant case. Unlike Thornton and Pritchett, where the trial judges swept the courtroom, of all spectators without regard to section 918.16's list of persons permitted to remain in attendance, here the trial court followed section 918.16 and simply excluded the idly curious....

...her Waller factors. We do not view the trial court's decision to follow the statute, without independent inquiry, as error. We hold that the four-factor inquiry of Waller is not imposed on cases where the partial closure order is entered pursuant to section 918.16, Florida Statutes. [5] The Legislature, by enacting section 918.16, has found that there is a compelling state interest in protecting younger children or any person with mental retardation while testifying concerning a sexual offense. Accordingly, section 918.16 is narrowly drawn to ensure that a defendant's right to an open trial is protected....

...The spectators who are temporarily excluded from the proceeding are only those with no direct interest in the case. The press, as the eyes and ears of the public, is allowed *342 to remain. As the public's proxy, the presence of the press preserves a defendant's constitutional right to a public trial. Per section 918.16, Florida Statutes, which, we note, Clements has not challenged as unconstitutional, the idly curious were properly ordered from the courtroom. AFFIRMED. W. SHARP, J., and ORFINGER, M., Senior Judge, concur. NOTES [1] Section 918.16 provides: In the trial of any case, civil or criminal, when any person under the age of 16 or any person with mental retardation as defined in s....

...[4] The "sensitive" government material was brought out in only 2½ hours of the seven day trial. [5] In Globe, the United States Supreme Court listed a number of state statutes which it distinguished from that under consideration in Globe. The Court recognized that section 918.16, Florida Statutes, provides "for mandatory exclusion of general public but not press during testimony of minor victims." 457 U.S....

...Lizardo and Linda Katz, Assistant Attorneys General, for respondent. Before SCHWARTZ, C.J., and COPE and FLETCHER., JJ. COPE, J. The main question before us is whether it is fundamental error for the trial court to order a partial closure of the courtroom under subsection 918.16(2), Florida Statutes (2000) during the testimony of the victim of a sex crime, without making findings under Waller v....

...*370 Prior to trial the State moved for an order partially closing the courtroom during the testimony of the victim. The victim, who had been fifteen at the time of the charged offenses, was seventeen at the time of trial. At the time of the trial, subsection 918.16(2), Florida Statutes (2000) provided: (2) When the victim of a sex offense is testifying concerning that offense in any civil or criminal trial, the court shall clear the courtroom of all persons upon the request of the victim, regardl...

...ave raised the issue as being fundamental error. For the reason stated below, we reject the defendant's arguments. II. In Alonso v. State , this court addressed the procedure to be applied where the State seeks partial closure of the courtroom under section 918.16, Florida Statutes....

...[4] We agree with the Fourth District and align ourselves with the majority rule. A proper contemporaneous objection in the trial court is necessary to raise the need for Waller findings in connection with a request for partial closure of the courtroom under section 918.16, Florida Statutes....

...State, 827 So.2d 269 (Fla. 4th DCA 2002). In the instant case, Luda's attorney generally objected to the closure. But, he did not request that Luda's family members be allowed to remain in the courtroom and did not draw the trial court's attention to the language of section 918.16, Florida Statutes (1998), that exempts the parties' immediate families from exclusion from the courtroom....

...losing the proceeding, and it must make findings adequate to support the closure. Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The Florida Legislature balanced the various interests applicable in this case as provided in section 918.16, Florida Statutes (2000): (2) When the victim of a sex offense is testifying concerning that offense in any civil or criminal trial, the court shall clear the courtroom of all persons upon the request of the victim, regardless of the v...

...the state attorney may remain in the courtroom. Compliance with this statute results in a partial closing of the courtroom. The defendant argues that the trial court cleared the courtroom "without making the necessary findings pursuant to [s]ection 918.16." II. We agree with the Fifth District Court of Appeal in Clements v. State, 742 So.2d 338, 341 (Fla. 5th DCA 1999), that a separate Waller inquiry is not required when the trial court follows section 918.16 to achieve a partial closing, citing Douglas v....

...Haley, 250 F.3d 1308, 1315 (11th Cir.2001)("[I]n the event of a partial closure, a court need merely find a "substantial" reason for the partial closure, and need not satisfy the elements of the more rigorous Waller test."). The Legislature, by enacting section 918.16, recognizes that there is a substantial, if not compelling, state interest in protecting victims while testifying concerning a sexual offense, and has narrowly drawn it to ensure that a defendant's right to an open trial is protected. See Clements, 742 So.2d at 341-42. Accordingly, the requisite findings for a constitutional partial closing during the testimony of a sex crime victim are fulfilled by compliance with section 918.16. Contra Whitson v. State, 791 So.2d 544, 547-48 (Fla. 2d DCA 2001)(stating that the Waller analysis for a partial closing cannot be performed by reliance on section 918.16)....

...ext of the type of trial being conducted and the upcoming victim's testimony, along with the trial court's responsive question regarding whether the victim advocate would remain, indicate the parties knew that the State was attempting to comply with section 918.16....

...She ran out of the apartment wrapped in a towel and went next door where she told two teenaged children that she had been raped and asked them to call the police. At trial, the State moved to close the courtroom during the testimony of M.L. and the two teenagers under authority of section 918.16, Florida Statutes (1999). [1] That statute provides: 918.16 Sex offenses; testimony of person under age 16 or person with mental retardation; testimony of victim; courtroom cleared; exceptions.— (1) Except as provided in subsection (2), in the trial of any case, civil or criminal, when any person under the age of 16 or any person with mental retardation as defined in s....

...For the reasons stated, we reverse the judgment and remand for a new trial. SCHWARTZ, C.J., concurs. JORGENSON, J., specially concurring. I concur in the result solely because the United States Supreme Court has mandated that trial courts must first apply a four-part analysis before statutes such as section 918.16 can be constitutionally implemented....

...ve, [2] contending that numerous legal errors permeated his trial. We find merit in his contention that the court reversibly erred by improperly closing the courtroom during his trial and grant Mr. Whitson a new trial. The remaining issues are moot. Section 918.16(2), Florida Statutes (1999), empowers a trial court to clear the courtroom of all persons when certain victims of a sex offense testify. Because First Amendment and Sixth Amendment constitutional guarantees are implicated during a criminal trial, this power is not absolute. In tacit recognition of this limitation, section 918.16 carefully identifies those members of the public who are exempt from the statute's operation and who cannot be removed from the courtroom by the trial judge....

...at 48, 104 S.Ct. 2210. With this statutory and constitutional overview in mind, we set forth the relevant events in this case. Prior to calling the child victim, the prosecutor asked "that the courtroom be cleared." Mr. Whitson's counsel objected, arguing that section 918.16 requires a showing before closure can occur....

...4th DCA 1999), a trial court's exclusion from the courtroom of all members of the public during jury selection, absent compelling justification, necessitated reversal. Like the Fourth District, we require a Waller analysis prior to closure. We further observe that section 918.16 does not authorize total closure of the courtroom but expressly provides that specific persons, including media representatives, are exempt from exclusion....

...factors. The Fifth District found that the trial court's decision not to undertake a Waller analysis did not constitute reversible error. "We hold that the four-factor inquiry of Waller is not imposed where the partial closure is entered pursuant to section 918.16, Florida Statutes." Id....

...We observe that in this district Pritchett requires a Waller inquiry regardless of "whether the closure is total or partial." 566 So.2d at 7. Therefore, the likelihood of a future conflict between the districts seems almost a certainty, particularly since section 918.16, when followed, will result in partial closures in literally all cases because of the statutory exemptions from removal....

...We have reread the record and find that it is ambiguous at best but that the State's view is at least arguable. We conclude, however, that the presence of either the alleged victim's mother or her guardian is of no constitutional moment and of no consequence to our analysis. As we have noted above, section 918.16(2), Florida Statutes (1999), is designed to protect the child victim....

...nd lewd and lascivious molestation of a child under twelve. We affirm. I. A. Defendant-appellant Lena argues that the trial court erred by partially closing the courtroom during the testimony of the minor victim, who was eleven at the time of trial. Section 918.16, Florida Statutes provides for a partial closure of the courtroom "when any person under the age of 16 or any person with mental retardation ... is testifying concerning any sex offense...." Id. § 918.16(1). The statute also provides for partial closure "upon the request of the victim, regardless of the victim's age or mental capacity...." Id. § 918.16(2)....

...These are the "parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, court reporters, and, at the request of the victim, victim or witness advocates designated by the state attorney's office." Id. § 918.16(1); see also id. § 918.16(2)....

...In the usual case the excluded persons must wait outside the courtroom during the testimony of the protected person and have no practical alternative means for observing or hearing the testimony. B. The State moved for partial closure of the courtroom under section 918.16, arguing that partial closure would reduce the trauma and intimidation to the minor victim. The State requested that the trial judge view the videotaped deposition of the victim, and the court did so. The defense opposed the State's request, arguing that before section 918.16 could be applied, the court must determine that the constitutional standards for courtroom closure had been satisfied....

...or hear the proceedings. There was no television link. Similarly, in an ordinary partial closure under the Florida Statute, the excluded persons must leave the courtroom during the victim's testimony and have no alternative means to see or hear it. Section 918.16 does not require a television link for remote viewing....

...he witness who is testifying. See Douglas v. Wainwright, 739 F.2d 531, 532 (11th Cir.1984). A partial closure is one in which some spectators are allowed, in addition to the trial participants. See Judd v. Haley, 250 F.3d 1308, 1315 (11th Cir.2001). Section 918.16 is a partial closure statute because it allows additional spectators to remain: newspaper reporters, broadcasters, the parties' immediate families or guardians, and victim or witness advocates....

...FACTS AND PROCEDURAL HISTORY Anthony Kovaleski was convicted by a jury of two counts of lewd and lascivious acts on a minor. At Kovaleski’s first trial in 1998, the trial court partially closed the courtroom during the testimony of the victim, J.L., pursuant to section 918.16, Florida Statutes (1997), which allowed for partial closure of the courtroom during the testimony of a victim who was under the age of sixteen concerning a sex offense....

...State, 854 So.2d 282, 284 (Fla. 4th DCA 2003). Thus, the Fourth District reversed and remanded for a new trial. Id. at 284 . At Kovaleski’s second trial in 2006, the trial court partially closed the courtroom during the testimony of the victim pursuant to section 918.16(2), Florida Statutes (2001), which provided for partial closure of the courtroom during the testimony of a victim of a sex offense upon the victim’s request regardless of the victim’s age....

...On review here, Kovaleski claims that the Fourth District erred in finding that the trial court did not err in partially closing the courtroom during the victim’s testimony. ANALYSIS Kovaleski contends that the trial court’s closure during J.L.’s testimony pursuant to section 918.16(2) violated his right to a public trial under the Sixth Amendment to the United States Constitution and article I, section 16 of the Florida Constitution. Specifically, Kovaleski asserts that a partial closure pursuant to section 918.16(2) runs afoul of the United States Supreme Court’s decision in Waller , which sets out requirements that must be satisfied before the presumption of openness may be overcome: (1) the party seeking to close the hearing must advance an...

...be no broader than necessary to protect that interest; (3) the trial court *861 must consider reasonable alternatives to closing the proceedings; and (4) the court must make findings adequate to support the closure. 467 U.S. at 48 , 104 S.Ct. 2210 . Section 918.16(2) provides for partial closure of a trial during the testimony of victims at a sex offense trial: (2) When the victim of a sex offense is testifying concerning that offense in any civil or criminal trial, the court shall clear the cou...

...dians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, court reporters, and, at the request of the victim, victim or witness advocates designated by the state attorney may remain in the courtroom. § 918.16(2), Fla. Stat. (2001). 2 We find that section 918.16(2) acceptably embraces the requirements set forth in Waller, 3 Pursuant to the statute, the courtroom is partially closed not automatically but only upon the request of the victim....

...2613 , 73 L.Ed.2d 248 (1982) (automatic mandatory exclusion of the press and public from the courtroom with no particularized finding is constitutionally infirm as not narrowly tailored to the State’s compelling interest of protecting the testifying victim). Because the partial closure pursuant to section 918.16(2) occurs only at the request of the testifying victim, protecting the victim upon his or her request is a compelling interest of the State, satisfying the first prong of Waller ....

...rtroom, and because the partial closure is only during the victim’s testimony, the partial closure is narrowly tailored to the interest of protecting the victim. Regarding the third prong of Waller , we find that allowing the parties enumerated in section 918.16(2) to remain in the courtroom during the victim’s testimony and only providing the partial closure during the victim’s testimony provides for the most reasonable alternative to closing the courtroom during a trial....

...flict between Kovaleski and Jag-gers. Accordingly, we decline to grant jurisdiction on this ground and decline to address *860 Kovaleski’s claim that the Fourth District erred in finding that such elicited testimony was not preserved for review. . Section 918.16(2) has remained the same since 2001. . See Fla. S. Comm, on Judiciary, CS for SB 198 (1999) Staff Analysis 2 (Jan. 20, 1999) (on file with comm.) (contemplating the requirements of Waller in analyzing the bill which amended section 918.16(2), Fla....

...re unable to determine, under Washington, if the evidence would have been admissible. It is accordingly not preserved. The next issue raised by appellant is that the court erred in ordering partial closure of the courtroom when the victim testified. Section 918.16(2), Florida Statutes (2001), provides: When the victim of a sex offense is testifying concerning that offense in any civil or criminal trial, the court shall clear the courtroom of all persons upon the request of the victim, regardless...

...hird, the trial court must consider reasonable alternatives to closing the proceedings; and fourth, the court must make findings adequate to support the closure. Waller addressed the total closure of a court proceeding, not a partial closure such as section 918.16 authorizes. In Clements v. State, 742 So.2d 338 (Fla. 5th DCA 1999), the Fifth District held that Waller is inapplicable to the partial closure authorized by the statute, explaining: The Legislature, by enacting section 918.16, has found that there is a compelling state interest in protecting younger children or any person with mental retardation while testifying concerning a sexual offense. Accordingly, section 918.16 is narrowly drawn to ensure that a defendant's right to an open trial is protected....

...The spectators who *258 are temporarily excluded from the proceeding are only those with no direct interest in the case. The press, as the eyes and ears of the public, is allowed to remain. As the public's proxy, the presence of the press preserves a defendant's constitutional right to a public trial. Per section 918.16, Florida Statutes, which, we note, Clements has not challenged as unconstitutional, the idly curious were properly ordered from the courtroom. In Alvarez v. State, 827 So.2d 269 (Fla. 4th DCA 2002), we addressed the issue of whether a failure to object to a closing of the courtroom under section 918.16 would constitute a waiver of the right to a public trial. We held that this was a waiver and receded from a prior decision holding that it could not be waived, citing Clements. We agree with Clements that the findings required by Waller are not applicable to a partial closure under section 918.16, and affirm as to the closure....

...During the trial, the trial court, without any party requesting it, cleared the courtroom of all spectators while the minor victim testified. The appellant objected on the ground that clearing the courtroom would deny him the right to a public trial. Section 918.16, Florida Statutes (1989), provides that in a trial when any person under the age of sixteen is testifying concerning any sex offense, the court shall clear the courtroom of all persons except several enumerated individuals....

...ust consider reasonable alternatives to closing the proceedings, and fourth, the court must make findings adequate to support the closure. Waller. The trial court in this case failed to apply the Waller prerequisites and apparently did not adhere to section 918.16 when it cleared the courtroom of even those individuals authorized under the statute to be present....

...Concerning that one point, we agree with Kovaleski's assertion that his constitutional right to a public trial was violated. We reject the State's argument that he failed to timely object to the continued closure of the courtroom. Originally, the courtroom was partially closed under Florida Statutes section 918.16, which allows for closure to all but specified necessary individuals during the period when a victim of a sex offense under sixteen years of age is set to testify....

...Appellant was convicted by jury and sentenced for a lewd, lascivious or indecent act on a child. We affirm on all issues raised in this appeal but write to discuss appellant’s contention that his right to a public trial was violated when his mother was removed from the courtroom during the testimony of the minor victims. Section 918.16 (1), Florida Statutes (1999), authorizes closure of the courtroom while a minor victim testifies concerning a sex offense....

...lation of section 800.04(5)(b), Florida Statutes (2002). Mr. Springer raises four issues on this appeal. As we find that none are meritorious, however, we affirm. Mr. Springer first argues that the partial closure of the courtroom in accordance with section 918.16, Florida Statutes (2002), during the testimony of the victim *720 denied him a right to a fair and open public trial....

...Any error on the second and third points, concerning the admission of testimony, is harmless. As to the first point, Miller argues the trial court reversibly erred in excluding his immediate family from the courtroom during the testimony of the victim, A.H., contrary to section 918.16(1), Florida Statutes....

...te families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, court reporters, and, at the request of the victim, victim or witness advocates designated by the state attorney's office. § 918.16(1), Fla....

...4th DCA 2003) ("A defendant, however, can waive his right to a public trial by failing to object. In the instant case, Luda's attorney generally objected to the closure. But, he did not request that Luda's family members be allowed to remain in the courtroom and did not draw the trial court's attention to the language of section 918.16, Florida Statutes (1998), that exempts the parties' immediate families from exclusion from the courtroom....

...ve the issue for intelligent review on appeal. " (citations omitted; emphasis added)); Hobbs v. State, 820 So.2d 347, 349 (Fla. 1st DCA 2002) (finding defendant failed to preserve argument on *948 appeal, that trial court erred in not complying with section 918.16, where "the parties knew that the State was attempting to comply with section 918.16" and defense counsel failed to object)....

...ing the spectators to clear the courtroom. We agree that these errors require reversal. See Whitson v. State, 791 So.2d 544 (Fla. 2d DCA 2001); Thornton v. State, 585 So.2d 1189 (Fla. 2d DCA 1991); Pritchett v. State, 566 So.2d 6 (Fla. 2d DCA 1990). Section 918.16(1), Florida Statutes (2000), provides that when any person under the age of sixteen is testifying concerning any sex offense, the trial court: shall clear the courtroom of all persons except parties to the cause and their immediate fam...

...Ashley Moody, Attorney General, Tallahassee, and Georgina Jimenez- Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. Affirmed. See Kovaleski v. State, 103 So. 3d 859, 861 (Fla. 2012) (holding that partial courtroom closure pursuant to section 918.16(2), Fla. Stat., complied with the Waller test) (citing Waller v....