JAMES BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed a sexually violent predator civil commitment annual review because the trial court improperly allowed expert testimony via telephone without a notary present to administer the oath, and this error was not harmless where the expert's testimony was the sole evidence supporting commitment.
Telephonic expert testimony without a notary or authorized oath administrator present violates Florida Rule of Judicial Administration 2.530(d)(3) and constitutes reversible error when it is the only evidence supporting a sexually violent predator commitment finding.
[1] Telephonic testimony in a sexually violent predator civil commitment annual review proceeding must be administered by a notary public or other person authorized to admini…
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Join FLexlaw to unlock all legal intelligence“Testimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witness's jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction.”
Florida Rule of Judicial Administration 2.530(d)(3) requirement for telephonic testimony
James Brown appealed an annual review trial under Florida's Involuntary Civil Commitment of Sexually Violent Predators Act (Jimmy Ryce Act). Dr. Eric …
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The trial court erred in allowing Dr. Eric Jensen to testify telephonically at the appellant’s annual review trial held pursuant to section 394.918(3), Florida *382Statutes (2010), of the Involuntary Civil Commitment of Sexually Violent Predators Act, also known as the Jimmy Ryce Act. There was no notary or other person authorized to administer an oath present with Dr. Jensen. See Fla. R. Jud. Admin. 2.530(d)(3) (“Testimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction.”).
We cannot say that the error was harmless. Aside from Dr. Jensen’s testimony, there was no other evidence to support the trial court’s finding that the State proved by clear and convincing evidence that the appellant’s mental condition remained such that it was not safe for him to be at large and that, if released, he was likely to engage in acts of sexual violence. Cf. Golden & Cowan, P.A. v. Estate of Kosofsky, 45 So.3d 986 (Fla. 3d DCA 2010) (holding that the trial court’s error in allowing telephonic testimony over the appellant’s objection and in violation of rule 2.530(d)(1) was harmless due to the existence of other independent evidence which would have supported the trial court’s decision). Accordingly, we reverse and remand for a new annual review trial.
REVERSED and REMANDED.
BENTON, C.J., ROBERTS, and RAY, JJ., concur.
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Rivero v. State, 121 So. 3d 1175 (Fla. 3d DCA 2013)…the defendant’s — that the file was not lost — by telephone without the defendant’s consent and indeed over his specific objections. There is no doubt that this is contrary to Florida Rule of Judicial Administration 2.540(d)(1). See Brown v. State, 101 So. 3d 381 (Fla. 1st DCA 2012); Cole v. Cole, 86 So. 3d 1175 (Fla. 5th DCA 2012); M.S. v. Dep’t of Children & Families, 6 So. 3d 102 (Fla. 4th DCA 2009). The majority bases affirmance upon the ground of harmless error. I believe that this basis for affirmance…
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Authorities Cited
- Golden & Cowan, P.A. v. The Est. OF Hilda Kosofsky, 45 So. 3d 986 (Fla. 3d DCA 2010)