PAUL PEREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed the trial court's admission of a child victim's hearsay statements under the statutory exception and rejection of the defendant's confrontation clause challenge, finding the child unavailable due to risk of severe mental harm.
A trial court may admit hearsay statements of a child victim of sexual abuse under Fla. Stat. § 90.803(23) without violating the Confrontation Clause when the child is found unavailable due to substantial likelihood of severe mental harm from testifying.
[1] Fla. …
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Join FLexlaw to unlock all legal intelligenceDefendant was charged with lewd assault on a 3½-year-old child. The trial court held an evidentiary hearing on defendant's motion to exclude the child…
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COWART, Judge.
Charged with a lewd assault upon a 3½ year old child (§ 800.04, Fla.Stat.), the defendant made a pretrial motion to exclude the child victim’s hearsay statements from admissibility in evidence at trial and to compel the child to testify, arguing that this action was necessary to protect his constitutional right to confront his accuser. After an evidentiary hearing the court denied the defendant’s motions and determined that the child’s hearsay statements were reliable and admissible and found that the child was “unavailable” to testify solely upon the substantial likelihood of severe mental harm to the child if it were required to testify in open trial proceedings. The trial court did not examine the child although the defendant contended the court was required to do so in order to determine the child’s competency. The defendant entered a plea of nolo contendere reserving the right to appeal the issues raised by the motion which issues the trial court found were dispositive of the case.
The trial judge in this case followed the provisions of section 90.803(23), Florida Statutes (1985), the child victim of sexual misconduct hearsay exception. Those provisions meet the requirements of the confrontation clause of the federal constitution (U.S. Const. amend. YI) as interpreted by the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597, 607 (1980), and of the Florida constitution (Art. I, § 16, Fla. Const.).
AFFIRMED.
UPCHURCH, C.J., and ORFINGER, J., concur.
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Citator
Cited By
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Perez v. State, 536 So. 2d 206 (Fla. 1988)…EHRLICH, Chief Justice. We have for review Perez v. State, 500 So. 2d 725 (Fla. 5th DCA 1987), in which the district court expressly declared valid section 90.803(23), Florida Statutes (1985).1 We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The petitioner, Paul Perez, was charged with a lewd assault upon a three-an…
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Fuller v. State, 540 So. 2d 182 (Fla. 5th DCA 1989)…uired, certain of defendant’s arguments are unpersuasive. Section 90.-803(23), Florida Statutes (1987), the statute which permits the introduction of hearsay statements of a child victim of sexual abuse, has been held constitutional, Perez v. State, 500 So. 2d 725 (Fla. 5th DCA 1987), approved, 536 So. 2d 206 (Fla.1988), so appellant’s contention to the contrary is without merit. Neither do we find error in the manner in which the statute was applied here. Despite some inconsistencies in the testimony of the…
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Cook v. State, 531 So. 2d 1369 (Fla. 1st DCA 1988)…ection 90.803(23) violates her sixth amendment right of confrontation. Other Florida courts have upheld the statute upon similar challenges. See Glendening v. State, 503 So. 2d 335 (Fla. 2d DCA 1987), review pending, Case No. 70,346; Perez v. State, 500 So. 2d 725 (Fla. 5th DCA 1987). Both Glendening and Perez relied on Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), in which the United States Supreme Court rejected a sixth amendment challenge where statements by an unavailable declarant…
Authorities Cited
- Ohio v. Roberts, 448 U.S. 56 (U.S. 1980)