SCOTT MCQUIRK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Scott McQuirk appeals his conviction for sexual battery against a 19-year-old victim with mild intellectual disability who perceived reality at a 10-12 year-old level. McQuirk challenged the admission of expert testimony vouching for the victim's credibility and restrictions on cross-examination, but the Florida appellate court affirmed because these issues were not preserved through contemporaneous objection and did not constitute fundamental error.
The appellate court could not review the alleged errors because McQuirk's trial counsel failed to make specific, contemporaneous objections to preserve the issues for appeal, and the trial court committed no fundamental error that would allow appellate review absent such objections.
[1] An appellate court will not review issues not preserved by a contemporaneous objection at trial, absent fundamental error.
[2] Appellate counsel is bound by the actions of trial counsel regarding the preservation of issues for appeal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The general rule in Florida is that an attorney must make a contemporaneous objection to a trial court's ruling in order to preserve the error for appeal. This rule does not apply if the trial court commits fundamental error.”
Establishes the preservation requirement for appellate review of trial court rulings in Florida.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceScott McQuirk was convicted of sexual battery on the daughter of his former girlfriend. The victim was 19 years old at the time of the crime but, due …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Conviction cases and more on FLexlaw
THOMPSON, Judge.
Scott McQuirk appeals his conviction for sexual battery1 on the daughter of his former girlfriend. Testimony established that the victim was 19 at the time of the crime, but because she is mildly retarded, she perceives reality as a 10 to 12 year old. We affirm.
On appeal, McQuirk raised three issues concerning the admission of testimony at trial: 1) whether the trial court erred in allowing two experts to testify to the victim’s credibility that, in their opinion, the victim was “very capable of telling the truth;” 2) whether the trial court erred in restricting the cross-examination of witnesses which adversely affected McQuirk’s ability to develop his defense theory of the case; and 3) whether the cumulative errors of the trial court constituted fundamental error. Unfortunately, we are unable to review the alleged errors.
The general rule in Florida is that an attorney must make a contemporaneous objection to a trial court’s ruling in order to preserve the error for appeal. This rule does not apply if the trial court commits fundamental error. See Castor v. State, 365 So. 2d 701, 703 (Fla.1978) (holding that unless fundamental error, appellate courts will not review for first time on appeal points not preserved by contemporaneous objection by trial counsel and that appellate counsel is bound by acts of trial counsel). McQuirk’s privately retained counsel never made specific, contemporaneous objections to the rulings of the trial court.
Thus, they were not preserved for appeal. Further, we hold that the trial court committed no fundamental error in this sexual battery case. See Assiag v. State, 565 So. 2d 387, 388 (Fla. 5th DCA1990) (holding that issue of whether trial court allowed two psychological experts to improperly vouch for credibility of sex crime victim was not preserved for appellate review by specific, contemporaneous objection at trial); see also Glendening v. State, 536 So. 2d 212, 221 (Fla.1988), cert. denied, 492 U.S. 907, 109 S.Ct. 3219, 106 L.Ed.2d 569 (1989) (holding that expert’s improper testimony that in her opinion child’s father was person who committed sexual battery upon child was not preserved for appellate review where there was no contemporaneous objection at trial, nor was it fundamental error).
Because the issues were not preserved for appeal and there was no fundamental error, we affirm.
AFFIRMED.
GOSHORN and GRIFFIN, JJ., concur. . § 794.011(5), Fla.Stat. (1993).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Anton, 700 So. 2d 743 (Fla. 2d DCA 1997)…ing, in context of petition for habeas corpus, that appellant could not raise for first time on appeal sheriffs statement that “the killing of a police officer affects the ability of the police department to carry out its duties”); McQuirk v. State, 667 So. 2d 441 (Fla. 5th DCA 1996) (holding that counsel must object to preserve error when expert improperly vouches for credibility of victim).' Fifth, Anton asserts that the jury instructions regarding the offense of attempted robbery with a firearm were confu…
-
Jervis v. State, 727 So. 2d 981 (Fla. 5th DCA 1999)…ourt refused to allow the defense to impeach Traenkner by cross-examining her about being on probation, after having been convicted of DUI. We do not think this issue was preserved for appeal. § 924.051(3)(l)(b), Fla. Stat. (1997); McQuirk v. State, 667 So. 2d 441 (Fla. 5th DCA 1996). The defense asserted that Jean-Mary v. State, 678 So. 2d 928 (Fla. 3rd DCA 1996) allows the defense to cross-examine a state witness about pending criminal investigations to show bias, self-interest or motive to testify in suppo…
Authorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Glendening v. State, 536 So. 2d 212 (Fla. 1988)
- Whatley v. Skaggs Cos., Inc., 492 U.S. 907 (U.S. 1989)
- Posey v. Ohio, 492 U.S. 907 (U.S. 1989)
- Avrahm Assiag v. State, 565 So. 2d 387 (Fla. 5th DCA 1990)