Third District Court of Appeal

State of Florida 

Opinion filed March 14, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D24-0331

Lower Tribunal Nos. F23-17968, F23-18427

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Jose Benito Larioszambrana,

Petitioner,

vs.

The State of Florida, et al.,

Respondents.

A Case of Original Jurisdiction – Habeas Corpus.

The Law Offices of Sean Marcus, PLLC, and Sean T. Thomas Marcus, 

for petitioner.

Ashley Moody, Attorney General, and Sandra Lipman, Senior 

Assistant Attorney General, for respondent The State of Florida.

Before LOGUE, C.J., and EMAS and SCALES, JJ. 

EMAS, J. 
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Petitioner, Jose Benito Larioszambrana, was arrested for two separate 

alleged offenses of lewd and lascivious molestation on a child less than 12 

years of age. However, because no information was filed within 21 days of 

his arrest, Petitioner was entitled to an adversary preliminary hearing on 

each of those charges.1

 See Fla. R. Crim. P. 3.133(b)(1) (“A defendant who 

is not charged in an information or indictment within 21 days from the date 

of arrest or service of the capias on him or her shall have a right to an 

adversary preliminary hearing on any felony charge then pending against the 

defendant. The subsequent filing of an information or indictment shall not 

eliminate a defendant's entitlement to this proceeding.”) See also Evans v. 

Seagraves, 922 So. 2d 318 (Fla. 1st DCA 2006); Parry-Hoepfner v. State, 

128 So. 3d 864 (Fla. 5th DCA 2013). 

Prior to the adversary preliminary hearing, the State filed a notice of its 

intent to rely on two out-of-court statements made by the child victim, seeking 

their introduction pursuant to section 90.803(23), Florida Statutes (2023). 

That statute establishes certain requirements of reliability and 

1 The instant petition involves only one of the two cases—lower court case 

number F23-17968. In the second case (F23-18427), the State was unable 

to proceed with the adversary preliminary hearing, and has conceded 

Petitioner was entitled to be released on recognizance in that case. The trial 

court’s written order, filed March 5, 2024, directs Petitioner’s release on 

recognizance in that case. 
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trustworthiness that must be met, and findings that must be made, before an 

out-of-court statement of a child victim may be deemed admissible at a civil

or criminal proceeding.

2

 Relevant to the issue raised in this petition, section 

2 Section 90.803(23) provides in full: 

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).

(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 
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90.803(23)(a)2. further provides that an out-of-court statement of a child 

victim is not admissible unless: 

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). 

The trial court conducted a hearing and, over Petitioner’s objection,

ruled that the out-of-court statements of the child victim were admissible at 

the adversary preliminary hearing. Those statements were introduced 

through the testimony of the two witnesses called by the State. 

However, the child victim did not testify at the adversary preliminary 

hearing. Further, the State did not offer any evidence (nor did the trial court 

make any determination) that the child victim was “unavailable as a witness.”

As a result, the out-of-court statements of the child victim did not meet the 

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.
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requirements for admission under section 90.803(23), and constituted

inadmissible hearsay. Fuller v. State, 540 So. 2d 182, 185 (Fla. 5th DCA 

1989) (“As a condition of admissibility, the statute [section 90.803(23)] 

requires that the court find that the time, content and circumstances of the 

statement provide sufficient safeguards of reliability and that the child either 

testifies or is unavailable as a witness.”) (Emphasis added).

These inadmissible hearsay statements were the only statements of 

the child victim introduced by the State at the adversary preliminary hearing 

in support of a finding of probable cause that Petitioner committed the crime 

of lewd and lascivious molestation of the child victim in F23-17968. 

The law is clear that the State may not rely exclusively on inadmissible 

hearsay to establish probable cause in an adversary preliminary hearing 

under rule 3.133(b). However, inadmissible hearsay evidence may be 

considered by the trial court at an adversary preliminary hearing so long as 

there is admissible evidence presented to support a finding of probable 

cause. See, e.g., Davis v. Junior, 300 So. 3d 307, 308 (Fla. 3d DCA 2020) 

(“‘Rule 3.133(b) does not permit the state to rely wholly on a complaint (even 

if sworn), on another affidavit or on any other evidence inadmissible at trial.’”) 
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(emphasis added) (quoting Evans v. Seagraves, 922 So. 2d 318, 321 (Fla. 

1st DCA 2006)).3

Petitioner contends that, because the statements of the child victim 

were inadmissible hearsay, and there was no other admissible evidence to 

establish probable cause that an offense has been committed and that the 

defendant has committed it, see Fla. R. Crim. P. 3.133(b)(5), he is entitled to 

a release on recognizance in case number F23-17968. Upon our review of 

the record, we agree. While the State certainly introduced some admissible 

evidence at the hearing, the State failed in its burden to present admissible 

evidence establishing “probable cause to believe that an offense has been 

committed and that the defendant has committed it.” Indeed, the only 

3 We reject Petitioner’s suggestion that Davis v. Junior, 300 So. 3d 307 (Fla. 

3d DCA 2020) holds that admissible hearsay (i.e., hearsay evidence 

admissible under a statutory exception) is not competent evidence in an 

adversary preliminary hearing. In Davis, this court relied on and cited to

Evans v. Seagraves, 922 So. 2d 318 (Fla. 1st DCA 2006), which drew the 

proper distinction. In Evans, the First District “issued the writ because the 

only evidence adduced at [petitioner’s] adversary preliminary hearing was a 

hearsay account which would not have been admissible if offered at trial. 

Our decision is the latest in an unbroken line of precedent holding that 

hearsay testimony (not falling within some exception to the rule 

excluding hearsay) does not, by itself, meet the state's burden at an 

adversary preliminary hearing under Florida Rule of Criminal Procedure 

3.133(b).” Id. at 319 (additional citations omitted) (emphasis added). The 

proper question is not whether the evidence offered is hearsay or 

nonhearsay, but whether it is admissible or inadmissible hearsay. In other 

words, and as Evans framed it, whether the evidence “would [] have been 

admissible if offered at trial.” Id. 
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evidence that a crime was committed, and that Petitioner committed it, came 

from the inadmissible out-of-court statements of the child victim.4

We therefore grant the petition, issue the writ, vacate the order under 

review, and direct the trial court to issue an order releasing Petitioner on his 

own recognizance in case number F23-17968, subject to the condition that 

he appear at all future court proceedings. This opinion shall take effect 

4 We reject the State’s suggestion that this court could deny the petition upon 

an alternative finding that one of the hearsay statements of the child victim 

was independently admissible as an excited utterance under section 

90.803(2) (“A statement or excited utterance relating to a startling event or 

condition made while the declarant was under the stress of excitement 

caused by the event or condition.”) The State did not offer this statement as 

an excited utterance at the adversary preliminary hearing, nor did the trial 

court admit the statement as such. And of course, Petitioner did not have an 

opportunity to object to, or present argument against, the admission of the 

statement as an excited utterance. Under such circumstances, we decline 

the invitation to make such a determination of admissibility in the first 

instance, especially considering the fact-based nature of the predicate that 

must be laid before such evidence can be admitted under this hearsay 

exception. See, e.g., Evans v. State, 838 So. 2d 1090, 1093 (Fla. 2002) 

(stating that to constitute an excited utterance, the qualifying statement must 

relate to “a startling event or condition” and “(1) the declarant must have 

experienced or witnessed an event startling enough to cause nervous 

excitement; (2) the statement must have been made while under the stress 

of excitement caused by the startling event; and (3) the statement must have 

been made before there was time to contrive or misrepresent.”) See also

Robertson v. State, 829 So. 2d 901 (Fla. 2002) (holding district court 

improperly applied the Tipsy Coachman doctrine to affirm trial court’s 

admission of evidence on an alternative evidentiary basis not argued in the 

trial court, where the record was insufficient for appellate court to determine

evidence was properly admitted on this alternative basis). 
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immediately, notwithstanding the filing or disposition of any motion for 

rehearing.