From Casetext: Smarter Legal Research

Howard v. State

District Court of Appeal of Florida, First District
May 27, 2005
902 So. 2d 878 (Fla. Dist. Ct. App. 2005)

Opinion

No. 1D04-1758.

May 27, 2005.

Appeal from the Circuit Court, Gadsden County, William L. Gary, J.

Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

Charles J. Crist, Jr., Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.


In this direct appeal from convictions imposed for kidnapping to inflict bodily harm or to terrorize and felony battery, appellant claims that he is entitled to a new trial because the trial court erred in admitting the hearsay testimony of a deputy sheriff to whom the victim, who was unavailable for trial, excitedly uttered her claims against appellant. The circumstances under which the excited utterances were given in this case meet the third definition of testimonial hearsay as set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Therefore, admitting the hearsay violated appellant's Confrontation rights. See Lopez v. State, 888 So.2d 693, 699 (Fla. 1st DCA 2004). Although the permissible evidence of guilt was substantial, it cannot be said, beyond a reasonable doubt, that the impermissible evidence did not affect the jury's verdict. See State v. DiGuilio, 491 So.2d 1129, 1136 (Fla. 1986). Accordingly, we reverse appellant's convictions and remand for a new trial.

DAVIS, LEWIS and POLSTON, JJ., concur.


Summaries of

Howard v. State

District Court of Appeal of Florida, First District
May 27, 2005
902 So. 2d 878 (Fla. Dist. Ct. App. 2005)
Case details for

Howard v. State

Case Details

Full title:Ron HOWARD, Appellant, v. STATE of Florida, Appellee

Court:District Court of Appeal of Florida, First District

Date published: May 27, 2005

Citations

902 So. 2d 878 (Fla. Dist. Ct. App. 2005)

Citing Cases

Wright v. Secretary, Department of Corrections

This Court acknowledges that some courts have held that excited utterances may be testimonial, depending on…

Bartee v. State

Id. at 699-700. See also Howard v. State, 902 So.2d 878 (Fla. 1st DCA 2005) and Manuel v. State, 30 Fla. L.…