IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

 NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

FR. VINCENZO RONCHI,

Petitioner,

v. Case No. 5D18-194

STATE OF FLORIDA AND LOREN 

TIM BURTON,

Respondents.

________________________________/

Opinion filed June 15, 2018

Petition for Certiorari Review of 

Order from the Circuit Court 

for Orange County,

John Marshall Kest, Judge.

Kevin W. Shaughnessy, Caroline M. 

Landt, and Meagan L. Martin, of Baker & 

Hostetler, Orlando, for Petitioner.

Aramis D. Ayala, State Attorney Ninth 

Judicial Circuit of Florida, and Jenny R. 

Rossman, Chief, Sex Crimes Unit, and 

Cherish Renee Adams, Sex Crimes Unit, 

Assistant State Attorneys, Orlando, for 

Respondent, State of Florida.

No Appearance for Respondent, Loren 

Tim Burton.
2

PER CURIAM.

Father Vincenzo Ronchi, a Catholic priest, seeks certiorari review of an order 

requiring him to testify in a criminal case regarding certain communications that took place 

during the Sacrament of Reconciliation (commonly referred to as “Confession”). We have 

jurisdiction.1 Concluding that the trial court’s order contravenes Florida’s Religious 

Freedom Restoration Act (“FRFRA”), we grant the petition. 

In June 2017, Loren Burton was charged in a four-count information with 

committing sexual offenses against a minor. The charged offenses were alleged to have 

occurred when the alleged victim was seven years old and when she was thirteen years 

old. The record reflects that the criminal investigation of Burton commenced after the

alleged victim, then seventeen years old, disclosed to her mother that she had been 

sexually abused by Burton. 

In August 2017, the State filed a notice of intent to introduce child hearsay 

statements at trial pursuant to section 90.803(23), Florida Statutes (2017). That statute 

permits the introduction of out-of-court statements made by a child victim with a physical, 

mental, emotional, or developmental age of sixteen or less that describe any act of sexual 

abuse against the child provided that, inter alia, the time, content, circumstances or the 

 

1 Fla. R. App. P. 9.030(b)(2)(A). Certiorari relief is appropriate when an order 

departs from the essential requirements of the law and causes material injury to the 

petitioner that cannot be remedied on appeal. See Martin-Johnson v. Savage, 509 So. 

2d 1097, 1100 (Fla. 1987); see also Nussbaumer v. State, 882 So. 2d 1067, 1071-72 

(Fla. 2d DCA 2004) (holding that appellate court had jurisdiction over pastor’s petition for 

writ of certiorari regarding his claim of clergy communications privilege over records 

relating to his counseling of defendant in child molestation prosecution; pastor did not 

have adequate remedy by appeal because he was not party to criminal proceeding, so 

only way he could test court’s order to compel him to testify, other than by certiorari, was 

to risk contempt citation and then appeal if cited for contempt). 
3

statement provide sufficient safeguards of reliability.2 Here, the State alleged that when 

the alleged victim was fifteen years old, she disclosed to Ronchi that Burton had sexually 

abused her. 

 

2 Section 90.803(23), Florida Statutes, provides:

90.803. Hearsay exceptions; availability of declarant 

immaterial

(23) Hearsay exception; statement of child victim.—

(a) Unless the source of information or the method or 

circumstances by which the statement is reported indicates a 

lack of trustworthiness, an out-of-court statement made by a 

child victim with a physical, mental, emotional, or 

developmental age of 16 or less describing any act of child 

abuse or neglect, any act of sexual abuse against a child, the 

offense of child abuse, the offense of aggravated child abuse, 

or any offense involving an unlawful sexual act, contact, 

intrusion, or penetration performed in the presence of, with, 

by, or on the declarant child, not otherwise admissible, is 

admissible in evidence in any civil or criminal proceeding if:

1. The court finds in a hearing conducted outside the presence 

of the jury that the time, content, and circumstances of the 

statement provide sufficient safeguards of reliability. In 

making its determination, the court may consider the mental 

and physical age and maturity of the child, the nature and 

duration of the abuse or offense, the relationship of the child 

to the offender, the reliability of the assertion, the reliability of 

the child victim, and any other factor deemed appropriate; and

2. The child either:

a. Testifies; or

b. Is unavailable as a witness, provided that there is other 

corroborative evidence of the abuse or offense. Unavailability 

shall include a finding by the court that the child’s participation 

in the trial or proceeding would result in a substantial 

likelihood of severe emotional or mental harm, in addition to 

findings pursuant to s. 90.804(1).
4

Upon being served a witness subpoena, Ronchi filed a Motion for Protective Order 

Limiting Testimony. In his motion, Ronchi alleged that the State intended to question him 

regarding communications that may have taken place between a penitent and Ronchi 

during the Sacrament of Reconciliation. The motion further alleged that requiring Ronchi 

to testify as to any aspect of a Confession would violate the “sacred seal of the Catholic 

Sacrament of Reconciliation” and, as such, would violate Ronchi’s constitutional rights 

under the First Amendment to the United States Constitution. Ronchi further alleged that 

any such communication would be privileged under section 90.505, Florida Statutes 

(2017).3 Ronchi contended that the Catholic Church forbids a priest from disclosing any 

aspect of a penitent’s communication during the Sacrament of Reconciliation and, indeed, 

is sanctionable by excommunication from the Church. Ronchi subsequently filed a 

supplement to his motion, alleging that the coercion of his testimony would violate FRFRA 

(§§ 761.01–.061, Fla. Stat. (2017)). 

 

(b) In a criminal action, the defendant shall be notified no later 

than 10 days before trial that a statement which qualifies as a 

hearsay exception pursuant to this subsection will be offered 

as evidence at trial. The notice shall include a written 

statement of the content of the child’s statement, the time at 

which the statement was made, the circumstances 

surrounding the statement which indicate its reliability, and 

such other particulars as necessary to provide full disclosure 

of the statement.

(c) The court shall make specific findings of fact, on the 

record, as to the basis for its ruling under this subsection.

3 Section 90.505(2), Florida Statutes (2017) provides that a person “has a privilege 

to refuse to disclose, and to prevent another from disclosing, a confidential 

communication by the person to a member of the clergy in his or her capacity as spiritual 

advisor.” 
5

In its written response, the State proffered that the alleged victim, now an adult, 

had waived any privilege attached to her prior communications with Ronchi regarding 

Burton. The State further argued that the only evidence it had to corroborate the alleged 

victim’s anticipated trial testimony was her prior statement to Ronchi. The State 

contended that based on the alleged victim’s waiver, her communications with Ronchi 

were no longer privileged under section 90.505. Finally, the State argued that it had a 

compelling interest in the successful prosecution of child sexual abuse and that the least 

restrictive means to further this strong governmental interest was to compel Ronchi’s 

testimony. In a supplemental written response, the State proffered that it would produce 

evidence that during a conversation between Ronchi, the alleged victim’s mother, and a 

friend of the mother’s, Ronchi had acknowledged the alleged victim’s disclosure of sexual

abuse to him.

The trial court subsequently conducted an evidentiary hearing. At the hearing, the 

mother’s friend testified that during a conversation between her, the alleged victim’s 

mother, and Ronchi, Ronchi acknowledged that the alleged victim had previously 

disclosed to him that she had been molested by Burton. This conversation took place 

shortly after the alleged victim had disclosed the sexual abuse to her mother. The alleged 

victim’s mother appeared to have a different recollection of the conversation. In response 

to the court’s question as to whether Ronchi had acknowledged that the alleged victim 

had previously disclosed the abuse to him, the mother testified “[N]ot directly, but it could 

be understood from the conversation.”

Ronchi did not testify at the evidentiary hearing, but did present the testimony of 

Father Joseph Waters, both a priest and a judicial vicar in the Catholic Church. Waters 
6

was examined extensively about his affidavit that had previously been filed with the court. 

In his affidavit, Waters averred that a Catholic priest is prohibited from disclosing any 

aspect of a penitent’s communication during the Sacrament of Reconciliation including 

but not limited to, the penitent’s participation in the Sacrament, the nature of the 

confession, the priest’s mental impressions of the confession, and the priest’s 

communications to the penitent during Reconciliation, even if disclosure is agreed to by 

the penitent. Reverend Waters further opined that violations of the Sacrament are 

considered among the most grave violations of Church law and would subject a priest to 

excommunication from the Church. 

The trial court ultimately entered a written order granting Ronchi’s motion for 

protective order, in part, and denying the motion, in part. In its order, the trial court found 

that the communications between Ronchi and the alleged victim had occurred within the 

Sacrament of Reconciliation. This finding is supported by the record. The trial court then 

focused almost exclusively on the application of Florida’s Evidence Code in ruling on 

Ronchi’s motion. Specifically, the trial court determined that: (1) the communications 

between Ronchi and the alleged victim were privileged under section 90.505, (2) the 

privilege could be asserted by both Ronchi and the alleged victim, and (3) Ronchi had 

partially waived the privilege during his conversation with the alleged victim’s mother and 

her friend to the extent that he disclosed the identity of the penitent and that “the subject 

of the disclosure was sexual abuse.” The court concluded that Ronchi must respond to 

the subpoena and could be questioned about “the existence of the confession, the identity 

of the penitent, and that the subject matter involved sexual abuse.” However, the trial 

court granted the motion for protective order “as to the content of any other 
7

communications between [Ronchi] and the victim during the Sacrament of Reconciliation, 

and [Ronchi’s] impressions, actions or omissions as they relate to communications made 

during the Sacrament of Reconciliation.” 

Although the trial court focused on whether the communications between Ronchi 

and the alleged victim were privileged under section 90.505 and whether that privilege 

had been waived, we believe that this case is controlled by the application of FRFRA. 

The Florida Supreme Court has declared that the protection afforded to the free exercise 

of religiously motivated activity under FRFRA is broader than that afforded by the 

decisions of the United States Supreme Court. Warner v. City of Boca Raton, 887 So. 2d 

1023, 1032 (Fla. 2004). Because the protections afforded an individual under FRFRA 

are broader than those afforded under the Free Exercise Clause of the First Amendment 

to the United States Constitution, it is unnecessary for us to address Ronchi’s argument 

that his constitutional rights have been violated by the trial court’s order.4 

FRFRA expressly provides that the government shall not substantially burden a 

person’s exercise of religion, even if the burden results from a rule of general applicability, 

unless the government demonstrates that the application of the burden to the person is 

in furtherance of a compelling governmental interest and is the least restrictive means of 

furthering that compelling governmental interest. § 761.03(1), Fla. Stat. (2017). 

A substantial burden on the free exercise of religion is one that either compels the 

religious adherent to engage in conduct that his religion forbids or forbids him to engage 

 

4 Furthermore, Florida courts adhere to the long-standing principle of judicial 

restraint that favors avoiding a constitutional question when the case can be decided on 

statutory, or nonconstitutional, grounds. See In re Holder, 945 So. 2d 1130, 1133 (Fla. 

2006).
8

in conduct that his religion requires. Warner, 887 So. 2d at 1033. In the instant case, the 

record establishes that if Ronchi complies with the State’s demand that he testify as to 

his communications with the alleged victim during the Sacrament of Reconciliation, 

Ronchi would be forced to engage in conduct that is prohibited by the Catholic Church 

(and, indeed, would subject him to possible excommunication from the Church). Thus, 

the trial court’s order can only be upheld if the State establishes that coercing Ronchi’s 

testimony furthers a compelling governmental interest and is the least restrictive means 

to further that interest. 

Here, it is undisputed that the State has a compelling governmental interest in 

prosecuting sex offenses perpetrated against children. See Grady v. State, 701 So. 2d 

1181, 1182 (Fla. 5th DCA 1997) (“We find the charged offense in the instant case, . . . , 

falls within [the] category of crimes where the state has a compelling interest in protecting 

underage persons from being sexually abused or exploited.”). 

However, we disagree with the State’s contention that coercing Ronchi to testify 

regarding communications that occurred during the Sacrament of Reconciliation, in 

contravention of his sincerely held religious beliefs, would be the least restrictive means 

to further its compelling governmental interest of prosecuting Burton. First, as the State 

acknowledges, the testimony of Ronchi would, at most, be corroborative evidence. There 

is no allegation that Ronchi was a witness to any sexual abuse. Second, this case does 

not involve a child victim who, because of his or her tender age, might be unable to 

adequately testify as to the alleged sexual abuse. The alleged victim in this case is now 

an adult, and there is nothing in the record that suggests that she would be unable to 

testify as to the relevant events. Third, pursuant to section 90.803(23), the State could 
9

seek to have the alleged victim testify as to her purported prior disclosure of sexual abuse 

to Ronchi.5

Because we conclude that the trial court’s order contravenes FRFRA, we grant the 

petition and quash the trial court’s order to the extent that it required Ronchi to “respond 

to the subpoena and . . . be questioned about the existence of the confession, the identity 

of the penitent, and that the subject matter involved sexual abuse.”

PETITION GRANTED. 

TORPY and EVANDER, JJ., concur.

ORFINGER, J., concurs, with opinion.

 

5 We would also suggest that authorizing Ronchi to testify that the alleged victim 

had made a prior disclosure of sex abuse to him, but precluding him from testifying as to 

the details of that disclosure, would raise significant concerns as to Burton’s constitutional 

right to confront and cross examine the witnesses against him. 
10

ORFINGER, J., concurs. Case No. 5D18-194

I concur entirely with the majority opinion. I write separately to express my view 

that the trial judge erred by concluding that Father Ronchi waived the clergy privilege by 

allegedly disclosing certain information to the victim’s family. 

There is no doubt that the statement made by the alleged victim to Father Ronchi 

during Confession was privileged. Thus, the issue that must be determined is whether 

the clergy member can waive the privilege. To answer this question, one must examine 

two statutes—sections 90.505 and 90.507, Florida Statutes (2017). Section 90.505(2) 

and (3) recognizes that the clergy privilege belongs to the person seeking spiritual advice. 

“The privilege does not belong to the member of the clergy, but the clergy may claim the 

privilege on behalf of the holder.” 1 Fla. Prac., Evidence § 505.3 (2018 ed.). This is 

consistent with section 90.507, which provides that the person who has the privilege 

waives it by voluntary disclosure. See 1 Fla. Prac., Evidence § 507.1 (2018 ed.) (“If the 

person to whom the privileged communication was made, e.g., a psychotherapist or a 

lawyer, discloses the information without the authority from the client or patient, the 

privilege is not waived because the holder did not make or consent to the disclosure.”). 

Thus, to me, it is clear that while the clergy can assert the privilege, only the penitent can 

waive it.

Even assuming, without deciding, that Father Ronchi disclosed privileged 

information to the alleged victim’s family, his actions could not waive the privilege.