JOYCE ALDAN DEAN, APPELLANT,

v.

STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1978-01-25

No. HH-38

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.

355 So. 2d 130 Florida District Court of Appeal, First District (1978) Positive Treatment

Cited by 4 cases

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Holding

An objection that a child witness did not take the oath cannot be raised for the first time on appeal if the fact was known early enough for a timely objection.

Facts & Procedural History

Appellant was charged with aggravated child abuse and convicted of the lesser included offense of battery. A five-year-old victim testified at trial a…

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Topics

Child Witness Competency Timeliness Of Objections Aggravated Child Abuse Waiver Of Objections

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Opinion of the Court

PER CURIAM.

Information charged that the Appellant committed aggravated child abuse, Section 827.03(2), Florida Statutes (1975), upon her five year old granddaughter. Following a jury trial, Appellant was convicted of battery, a lesser included offense of the crime charged. Appellant appeals the judgment of conviction and sentence.

A material witness at the trial was the five year old victim. After an extensive voir dire of the child by the court, the State and the Appellant, the court, within the bounds of his discretion, determined that the child was competent to testify, noting that the child understood the obligation to tell the truth.

Appellant raises the objection that the child testified without being administered the witness oath.1 We find this objection cannot be raised for the first time on appeal where such fact was known to the Appellant early enough so that a timely objection could have been made. Beausoliel v. United States, 71 U.S.App.D.C. 111, 107 F. 2d 292 (1939).

Finding no other reversible error, we affirm the judgment and sentence.

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur. . We recognize that § 90.605(2), Fla.Stat. (Supp.1976), effective July 1, 1978, Ch. 77-77, Laws of Florida (1977), specifically provides that: “In the court’s discretion, a young child may testify without taking the oath if the court determines the child understands the duty to tell the truth.”

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Murphy v. State, 667 So. 2d 375 (Fla. 1st DCA 1995)

…objection cannot be raised for the first time on appeal where such fact was known to the Appellant early enough so that a timely objection could have been made. Beausoliel v. United States, 71 U.S.App.D.C. 111, 107 F. 2d 292 (1989). Dean v. State, 355 So. 2d 130 (Fla. 1st DCA 1978). In the present case, it was clear to the parties at the evidentiary hearing that both attorney-witnesses Mr. Murphy called were going to testify without taking the oath. THE COURT: I don’t swear lawyers. I don’t think that is…
Jaffe v. In re Guardianship of Michael Ross Jaffe, 147 So. 3d 578 (Fla. 3d DCA 2014)

…v. State, 667 So. 2d 375 (Fla. 1st DCA 1995)(noting that objection to unsworn testimony cannot be made for the first time on appeal when the fact was known to the challenging party early enough to lodge a proper objection). See also, Dean v. State, 355 So. 2d 130 (Fla. 1st DCA 1978).…

Authorities Cited

Beausoliel v. United States, 107 F.2d 292 (D.C. Cir. 1939)

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