MATTHEW BAKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed in part and reversed in part the revocation of Matthew Baker's probation for lewd and lascivious acts upon his daughters, finding no abuse of discretion in the child's competency to testify.
The court held that the trial court did not abuse its discretion in determining the six-year-old child was competent to testify.
[1] The competency of an infant witness is measured by intelligence and a sense of the obligation to tell the truth, not by age.
[2] A trial court's determination of a witness's competency to testify is reviewed for an abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceMatthew Baker was placed on probation for lewd and lascivious acts upon a child. An affidavit alleged he committed sexual battery on his daughters. At…
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POLEN, Judge.
Matthew Baker appeals the revocation of his probation and the institution of a previous sentence for lewd and lascivious acts upon a child. We affirm in part and reverse in part.
On December 28,1990, Baker pled no contest to the charge of lewd and lascivious acts upon a child and was placed on three (3) years probation. On December 8, 1993, an affidavit alleging probation violations was filed against Baker. The affidavit stated that Baker committed sexual battery upon his six (6) year old daughter and four (4) year old daughter. A warrant was issued and Baker was held without - bond by acting Circuit Judge Joe Wild.
On April 12, and June 3, 1994, evidentiary hearings were held, where the state presented the testimony of Child Protection Pediatrician Randall Bertolite; his nurse, Susan Slade; the six year old child’s mother, Mary Ann Baker; and Randy Fornes, a deputy sheriff who interviewed the child on video tape. Each person testified to statements made by the child regarding the sexual abuse by the father, and the judge admitted the video tape interview into evidence. Additionally, the child testified that her father touched her in her “private parts.” Based on the testimony, the court revoked Baker’s probation and his previous sentence of three years in prison was reinstated.
Baker raises three issues on appeal, the first being his six year old daughter’s competency to testify. (There was apparently no effort to offer testimony of the four year old child.) The standard for competency of an infant witness was set by the supreme court in Lloyd v. State, 524 So. 2d 396 (Fla.1988). In Lloyd, the supreme court held that the competence for an infant witness is measured by his or her intelligence rather than age, and whether the child possesses a sense of the obligation to tell the truth. Id. at 400. Lloyd further asserts that in making this determination the court should consider: (1) whether the infant witness has sufficient intelligence to receive a just impression of the events observed; (2) sufficient capacity to relate them correctly; and (3) appreciates the need to tell the truth.
The competency of a witness to testify is a determination left to the sound discretion of the trial court, and absent an abuse of discretion, the trial court’s decision will not be disturbed. Lloyd v. State, 524 So. 2d 396 (Fla.1988); Rutledge v. State, 374 So. 2d 975, 979 (Fla.1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980); Begley v. State, 483 So. 2d 70, 72 (Fla. 4th DCA 1986); In the Interest of M.A., 477 So. 2d 47, 48 (Fla. 4th DCA 1985); Davis v. State, 348 So. 2d 1228, 1229-1230 (Fla. 3d DCA 1977), cert. denied, 358 So. 2d 134 (Fla.1978).
In the case at bar, we find no abuse of that discretion. Under the two prong test in Lloyd, the child proved her intelligence by knowing her age, where she went to school, where she went to church and could identify the colors of people’s clothing. Additionally, she met the second prong of the Lloyd test by showing she possessed a sense to tell the truth. She testified that she knew it was wrong to lie, and that people get into trouble for lying. Additionally, when asked by the judge, she agreed to answer questions as truthfully as possible. From these responses, we find competent evidence to support the trial court’s determination of competency and find no abuse of discretion.
The second issue raised by Baker is Judge Wild’s jurisdiction to preside over the hearing. Baker points out that Judge Wild is a county court judge that had received several consecutive appointments as an acting circuit judge. These consecutive appointments, Baker argues, made him a de facto circuit court judge in violation of Article V, Section 10(b) and 11(b) of the Florida Constitution.
The decision on this issue is controlled by the supreme court’s decision in Hon. Joe A. Wild v. Dozier, 672 So. 2d 16 (Fla.1996), reversing our decision in Dozier v. Hon. Joe A. Wild, 659 So. 2d 1103 (Fla. 4th DCA 1995). In Dozier, we certified the following question to the supreme court:
MAY A COUNTY COURT JUDGE BE ASSIGNED SUCCESSIVELY AND REPEATEDLY IN SIX MONTH ASSIGNMENTS OVER SEVERAL YEARS TO PRESIDE IN THE CIRCUIT COURT OVER HALF OF ALL FELONY CASES IN A COUNTY?
The supreme court answered the question in the affirmative, relying on the delegation authority of the chief judges of the judicial circuits. Under the supreme court’s disposition in Dozier, we therefore affirm Judge Wild’s jurisdiction to preside over this hearing.
Finally, Baker correctly asserts the trial court erred by failing to conform the written order to its oral pronouncement. The trial court orally found Baker had violated probation by committing a battery. The written order of revocation of probation, however, refers to the affidavit which alleged that Baker committed the greater offense of sexual battery.
This court has consistently held that oral pronouncements must emulate the written violation of probation order. Vann v. State, 441 So. 2d 1174 (Fla. 4th DCA 1983); citing Chester v. State, 355 So. 2d 509 (Fla. 2d DCA 1978); Baldasare v. State, 363 So. 2d 612 (Fla. 2d DCA 1978). In light of this discrepancy, we remand with instructions to correct this error. AFFIRMED IN PART AND REVERSED IN PART.
STONE and SHAHOOD, JJ., concur.
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Floyd v. State, 18 So. 3d 432 (Fla. 2009)…narrating those facts to the court or to a jury, and (3) whether the child has a moral sense of the obligation to tell the truth. Griffin v. State, 526 So. 2d 752, 753 (Fla. 1st DCA 1988) (citing Lloyd, 524 So. 2d at 400); see also Baker v. State, 674 So. 2d 199, 200 (Fla. 4th DCA 1996). The trial judge has the discretion to decide whether a witness of tender age is competent to testify and, accordingly, the decision to allow a child to testify is reviewed for abuse of discretion. See Lloyd, 524 So. 2d at 4…
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Seccia v. State, 720 So. 2d 580 (Fla. 1st DCA 1998)…iderably more positive, and less equivocal, than those given during the first trial) to the questions asked, and considering the child’s age, we are unable to say that the trial court’s finding constituted an abuse of discretion. See Baker v. State, 674 So. 2d 199 (Fla. 4th DCA 1996) (the trial court did not abuse its discretion in finding that a 6-year-old child was competent based upon the child’s testimony that she knew that it was wrong to lie, that one gets into trouble for lying, and that she would tell…
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Hayward v. State, 183 So. 3d 286 (Fla. 2015)…ent to support a finding that the witness has personal knowledge of the matter. Had the motion to disqualify McDowell been made at trial, the court would have had broad discretion in ruling as to his competence to testify. See, e.g., Baker v. State, 674 So. 2d 199, 200 (Fla. 4th DCA1996). The fact that the witness gave differing versions of events is not necessarily attributable to an inability to remember. Thus, Hayward’s claim was legally insufficient in this regard as it was founded on speculation. Moreov…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Lloyd v. State, 524 So. 2d 396 (Fla. 1988)
- Begley v. State, 483 So. 2d 70 (Fla. 4th DCA 1986)
- Blum v. Holley, 446 U.S. 913 (U.S. 1980)
- Dep't of Safety of N.H. v. Carlson, 446 U.S. 913 (U.S. 1980)
- The Honorable Joe A. Wild v. Dozier, 672 So. 2d 16 (Fla. 1996)
- Rutledge v. State, 374 So. 2d 975 (Fla. 1979)
- Chester v. State, 355 So. 2d 509 (Fla. 2d DCA 1978)
- Davis v. State, 348 So. 2d 1228 (Fla. 3d DCA 1977)
- W. Grp. Nurseries, Inc. v. Ergas, 659 So. 2d 1103 (Fla. 3d DCA 1994)
- Dozier v. The Honorable Joe A. Wild, 659 So. 2d 1103 (Fla. 4th DCA 1995)