DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TERRELL EUGENE TUMBLIN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D18-3507

[September 2, 2020]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; Steven Levin, Judge; L.T. Case No. 562018CF001349A.

Carey Haughwout, Public Defender, and Timothy Wang, Assistant 

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy, 

Assistant Attorney General, West Palm Beach, for appellee.

SHEPHERD, CAROLINE, Associate Judge.

The appellant was convicted of aggravated stalking. Appellant argues 

the trial court erred in three respects: (1) admitting into evidence a text 

message identified by the victim as being sent by the appellant, (2) allowing 

the victim to remain in the courtroom for opening statements after the rule 

of sequestration was invoked, and (3) denying his Florida Rule of Criminal 

Procedure 3.800(b) motion to correct illegal sentence for imposing a 

$500.00 public defender fee in the written judgment when the oral 

pronouncement was for $100.00.

We find no merit in the appellant’s first two arguments and affirm the 

appellant’s conviction. We agree with the third argument and remand to 

conform the written judgment to the oral pronouncement of a $100 public 

defender fee. We write only to address the second argument regarding the 

rule of sequestration.
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On the day of trial, before opening statements, defense counsel moved 

to exclude the witnesses from the courtroom. The trial court declined to 

apply the rule of sequestration to the victim, stating it would be error to 

exclude her.

The state called the victim as its first witness. The victim testified that 

she filed for, and was granted, an injunction for protection against 

domestic violence which both she and the appellant signed. She testified 

that after the injunction was in place, on more than four occasions, the 

appellant violated the injunction and contacted her. She explained that 

those contacts were in person, by threatening telephone calls, and by text 

messages in which he said he would have fun killing her. The victim 

testified that she was able to video record one of the appellant’s attempts 

to contact her when he appeared at her apartment. After the victim 

testified, she was not recalled as a witness at any other point in the case.

We review a trial court’s decision to allow a witness to be excluded from 

the rule of sequestration for an abuse of discretion. Gore v. State, 599 So. 

2d 978, 986 (Fla. 1992).

The Florida Rule of Evidence regarding witness sequestration is codified 

at section 90.616, Florida Statutes (2018), and titled “Exclusion of 

Witnesses.” Section 90.616(1) provides: “At the request of a party the 

court shall order, or upon its own motion the court may order, witnesses 

excluded from a proceeding so that they cannot hear the testimony of other 

witnesses except as provided in subsection (2).” (emphasis added).

Section 90.616(2)(d) provides, in pertinent part, “[a] witness may not be 

excluded if the witness is ... the victim of the crime, the victim’s next of kin, 

the parent or guardian of a minor child victim, or a lawful representative 

of such person, unless, upon motion, the court determines such person’s 

presence to be prejudicial.” § 90.616(2)(d), Fla. Stat. (emphasis added).

As defined by the Florida Supreme Court, “[t]he purpose of the rule of 

sequestration is to avoid a witness coloring his or her testimony by hearing 

the testimony of another, thereby discouraging fabrication, inaccuracy, and 

collusion.” Knight v. State, 746 So. 2d 423, 430 (1998) (emphasis added). 

Here, the trial court properly allowed the victim to remain in the 

courtroom for opening statements. As a preliminary matter, the rule of 

sequestration does not apply to opening statements, as opening 

statements are not evidence. See Fla. Std. Jury Instr. (Crim.) 2.1. (“The 

opening statement gives the attorneys a chance to tell you what evidence 

they believe will be presented during the trial. What the lawyers say is not 
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evidence, and you are not to consider it as such.”); Conahan v. State, 844 

So. 2d 629, 643 (Fla. 2003) (Harding, J., concurring in part, dissenting in 

part) (“Opening remarks are not evidence ....”); Jenkins v. State, 189 So. 

3d 866, 870 (Fla. 4th DCA 2015) (“[T]he statements of counsel during 

opening statements and closing arguments are not evidence, and the jury 

is told that the statements of the lawyers are not evidence pursuant to the 

Florida Standard Jury Instructions.”).

Nevertheless, under section 90.616(2), the trial court properly could 

have allowed the victim to remain in the courtroom during the entire trial, 

unless it determined prejudice to the defense would result. The defense 

failed to show how prejudice resulted from the victim hearing opening 

statements. The victim was the state’s first witness and was not recalled 

later as a witness, so there was no testimony which she could have heard 

by which she could conform her testimony. Thus, the defense has not 

established the trial court abused its discretion in allowing the victim to 

remain in the courtroom.

Based on the foregoing, we affirm the appellant’s conviction. We 

remand to conform the written judgment to the oral pronouncement of a 

$100 public defender fee. The appellant need not be present for this 

ministerial act.

Affirmed and remanded.

LEVINE, C.J., and KUNTZ, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.