DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MOISES CASCANTE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-389

[December 9, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Lynn Rosenthal, Judge; L.T. Case No. 11001029CF10A.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. 

Melear, Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

Moises Cascante (“appellant”) was convicted of three counts of capital 

sexual battery of a child less than twelve years of age by a defendant 

eighteen years or older, pursuant to section 794.011(2)(a), Florida 

Statutes (2007). He claims that the court’s oral finding of reliability at a 

child hearsay hearing was insufficient under section 90.803(23)(c), 

Florida Statutes (2013), to constitute a specific finding of fact on the 

record. Appellant argues that the court’s oral finding was insufficient 

because a written order containing findings of reliability had to be filed in 

the court record prior to the presentation of that evidence. We disagree, 

and affirm.

The State filed a pretrial notice asserting that certain video evidence 

and testimony qualified for use at trial under the child hearsay exception 

in section 90.803(23), and the court held two child hearsay hearings on 

the issue before the trial. The court prepared a detailed written order 

granting the motion and reciting factual findings from those hearings a 

day after the jury trial began, but the order was not filed in the court 
2

record by the time the evidence was admitted.1 Instead, the trial court 

filed its written order setting out specific findings of reliability on the day 

of the video’s admission. 

Section 90.803(23) requires “the State to give an accused prior notice 

of the potential use of a child’s statements about an event, which then 

requires the Court to conduct a separate hearing to determine the 

reliability of the proposed evidence.” Farinacci v. State, 29 So. 3d 1212, 

1214 (Fla. 4th DCA 2010) (footnote omitted). The statute provides:

(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. . . .

1 Defense counsel advised the court that a copy of the order had not been 

received prior to the time the State played the video at trial. However, it is 

undisputed that the court completed its order shortly after the start of the trial.
3

. . . .

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

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

§ 90.803(23), Fla. Stat. (2013) (emphasis added).

As the Florida Supreme Court has held:

Absent the specific findings of reliability mandated by the 

statute, a reviewing court cannot determine whether the 

statements were in fact reliable. Failure to make specific 

findings not only ignores the clear directive of the statute, 

but also implicates the defendant’s constitutional right to 

confrontation.

Hopkins v. State, 632 So. 2d 1372, 1377 (Fla. 1994).

Here, “[t]he record reflects that the court cumulatively weighed 

numerous potential facts, such as time, circumstances, credibility, 

demeanor, spontaneity, internal consistency of the individual 

statements, and maturity of the child,” Reynolds v. State, 660 So. 2d 

778, 780 (Fla. 4th DCA 1995), thus satisfying the statutory requirements 

and providing the basis for this court’s meaningful review of that 

decision. It is important to note that the appellant has not challenged 

the sufficiency of the court’s order on appeal; rather, his only grievance is 

the time at which it was filed in the court record.

We disagree with appellant’s assertion that the language in the 

statute is not satisfied unless the court files the specific findings in the 

record prior to the presentation of the evidence at trial. The rule does 

not explicitly require that the findings be filed in the record before the 

admission of the evidence under review. We hold that the trial court 

fulfilled its statutory obligation by making detailed written findings and 

filing them in the court record on the same day the evidence was received 

at trial.

Affirmed.

DAMOORGIAN and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.