ALFREDO RODRIGUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rodriguez appealed his conviction for sexual battery on a child, challenging the trial court's admission of the child victim's out-of-court statements and the court's inquiry into waiver of self-representation rights. The appellate court affirmed the conviction, holding that Rodriguez failed to preserve his hearsay objection by not contemporaneously objecting at trial.
The court affirmed Rodriguez's conviction on both grounds. As to the second claim, the court affirmed without discussion. As to the first claim, the court affirmed due to lack of preservation of the issue for appeal, holding that Rodriguez failed to preserve his hearsay objection by not making a contemporaneous objection at trial.
[1] A general hearsay objection is insufficient to preserve for appellate review a claim that a trial court failed to make specific factual findings regarding the reliability…
[2] To preserve for appeal an objection to the legal sufficiency of a trial court's findings on the reliability of a child hearsay statement, a contemporaneous objection to t…
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Join FLexlaw to unlock all legal intelligence“an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor”
Establishes the statutory definition of 'preserved' under Florida law, requiring both a timely objection and a ruling by the trial court
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Join FLexlaw to unlock all legal intelligenceRodriguez was convicted of sexual battery on a child less than twelve years of age. At trial, the child victim's out-of-court statements were admitted…
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In this appeal from his conviction for sexual battery on a child less than twelve years of age, appellant claims the trial court erred by (1) failing to make the required findings of reliability before admitting the child victim’s out-of-court statements at trial, and (2) failing to conduct an adequate inquiry before determining appellant waived his right to self-representation. We affirm as to the second claim without discussion. For the reasons that follow, we also affirm as to the first claim due to a lack of preservation.
Based on our review of the record, there is nothing to show that appellant objected to the admission of the child hearsay testimony before he filed his motion for new trial. In the absence of a contemporaneous objection, appellant failed to preserve his claim that the trial court failed to make the required findings of reliability under section 90.803(23), Florida Statutes (2010). Elwell v. State, 954 So.2d 104, 106 (Fla. 2d DCA 2007); Wykle v. State, 659 So.2d 1287, 1288-89 (Fla. 5th DCA 1995); see also McCloud v. State, 91 So.3d 940 (Fla. 1st DCA 2012).
Appellant asserts he could not object to the lack of findings because the trial court never ruled on the admissibility of the child hearsay testimony. He notes the trial court’s post-trial statement that it intended to make a ruling at a pretrial hearing on February 24, 2012, was not a substitute for an actual ruling. Even if this is true, appellant still was required to secure a ruling on the admissibility of the child hearsay testimony in order to preserve the issue for appeal. See § 924.051(l)(b), Fla. Stat. (2011) (defining “preserved” to mean that “an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor” (emphasis added)). Absent a definitive pretrial ruling, appellant was required to object to the admission of the child hearsay testimony at trial. Tolbert v. State, 922 So.2d 1013, 1017 (Fla. 5th DCA 2006). He could not remain silent on the trial court’s failure to rule on the admissibility of child hearsay testimony, allow the testimony to be presented at trial without objection, and then object to the admission of the testimony for the first time in a motion for new trial after an adverse verdict. See State v. Brockman, 827 So.2d 299, 303 (Fla. 1st DCA 2002) (holding that, absent fundamental error, the admissibility of evidence could not be raised in a motion for new trial where there was no contemporaneous objection at trial).
Contrary to appellant’s assertion, this case is distinguishable from Johnson v. State, 76 So.3d 1124 (Fla. 1st DCA 2012). In that case, we held defense counsel preserved a claim of error in the admission of child hearsay testimony, even though the parties erroneously believed a ruling had been made by a predecessor judge as to the admissibility of the evidence, where counsel renewed his objection to the hearsay testimony at every opportunity during trial and, afterwards, in his motion for new trial. Id. at 1125-26. Unlike in Johnson, appellant never objected to the hearsay testimony at trial. Therefore, we conclude appellant’s claim is not preserved for appeal.
AFFIRMED.
CLARK and ROWE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cowan v. State, 165 So. 3d 58 (Fla. 1st DCA 2015)…at trial. We agree with the state that this claim is not preserved for appeal because appellant failed to make a contemporaneous objection to the lack of findings. Elwell v. State, 954 So. 2d 104, 109 (Fla. 2d DCA 2007); accord, Rodriguez v. State, 120 So. 3d 656 (Fla. 1st DCA 2013); McCloud v. State, 91 So. 3d 940, 941 (Fla. 1st DCA 2012). Accordingly, we affirm. AFFIRMED. WOLF, ROWE, and SWANSON, JJ., concur.…
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Coleman v. State (Fla. 1st DCA 2020)
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Cowan v. Sec'y, Fla. Dep't of Corr. (M.D. Fla. 2025)…with the state that this claim is not preserved for appeal because appellant failed to make a contemporaneous objection to the lack of findings. Elwell v. State, 954 So. 2d 104, 109 (Fla. 2d DCA 2007); accord Rodriguez v. State, 120 So. 3d 656 (Fla. 1st DCA 2013); McCloud v. State, 91 So. 3d 940, 941 (Fla. 1st DCA 2012). Accordingly, we affirm. AFFIRMED. Doc. 7-2; see also Cowan v. State, 165 So. 3d 58 (Fla. 1st DCA 2015). The First DCA denied Petitioner's motion for rehe…
Authorities Cited
- State v. Brockman, 827 So. 2d 299 (Fla. 1st DCA 2002)
- Elwell v. State, 954 So. 2d 104 (Fla. 2d DCA 2007)
- Tolbert v. State, 922 So. 2d 1013 (Fla. 5th DCA 2006)
- Peterson v. Peterson, 659 So. 2d 1287 (Fla. 4th DCA 1995)
- Buddy Ray Wykle v. State, 659 So. 2d 1287 (Fla. 5th DCA 1995)
- McCLOUD v. State, 91 So. 3d 940 (Fla. 1st DCA 2012)
- Johnson v. State, 76 So. 3d 1124 (Fla. 1st DCA 2012)