FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D16-3027

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JONATHAN A. KNIGHT,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Leon County.

Kevin J. Carroll, Judge.

September 7, 2018

WINSOR, J.

Jonathan Knight was convicted of three counts of sexual 

battery on a child under twelve. On appeal he argues that he was 

denied the right to meaningful assistance of counsel as well as the 

right to confront witnesses against him. We affirm. 

The morning of trial, the court considered the State’s request 

to allow the victim—Knight’s daughter—to testify through a 

closed-circuit television system pursuant to section 92.54, Florida 

Statutes. The State began by explaining how the process would 

work: At trial, the child would testify from the State Attorney’s 

office, located upstairs in the courthouse. The prosecutor, defense 

counsel, and the judge would be in the room with the child, while 

Knight and the jury would watch live from the courtroom. 
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The court then heard testimony from a licensed clinical social 

worker who had counseled the child. The social worker opined that 

the child “would probably have significant emotional harm” if 

required to testify in open court. Defense counsel made a general

Confrontation Clause argument but offered nothing to refute the 

social worker’s opinion. The court granted the State’s motion but 

did not make specific findings, despite a statutory requirement 

that it do so. See § 92.54(5), Fla. Stat. (“The court shall make 

specific findings of fact, on the record, as to the basis for its ruling 

under this section.”).

While the attorneys were out of the courtroom setting up the 

equipment, Knight asked the court how he would speak to his 

attorney if he had questions during the victim’s testimony. The 

court responded by saying “I really don’t want to talk to you right 

now without your lawyer here.” Neither Knight nor his attorney 

objected to the particular arrangements for the victim’s testimony, 

and neither requested a means of communicating during the 

testimony. 

Knight was ultimately convicted on all three counts and 

sentenced to concurrent terms of life in prison. He now argues that

his convictions should be overturned because the trial court did not 

make specific findings in support of its order authorizing the 

victim’s remote testimony and because he could not communicate 

with his counsel during that testimony. 

“[I]t is recognized that the defendant’s right to confront his 

accuser must give way to the State’s interest in sparing child 

victims of sexual crimes the further trauma of in-court testimony.” 

Ritchie v. State, 720 So. 2d 261, 262 (Fla. 1st DCA 1998). 

Consistent with that interest, sections 92.53 and 92.54, Florida 

Statutes, allow children to testify by closed-circuit television or 

pre-recorded video in certain circumstances. The United States

Supreme Court has upheld similar statutes against Confrontation 

Clause challenges, see Maryland v. Craig, 497 U.S. 836, 857 (1990), 

and the Florida Supreme Court has upheld Florida’s law, see

Hopkins v. State, 632 So. 2d 1372, 1376 (Fla. 1994). However, both 

the United States Supreme Court and the Florida Supreme Court 

have acknowledged that the Constitution requires trial court 

judges to make case-specific findings before defendants can be 
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denied face-to-face confrontation. Craig, 497 U.S. at 857 (“The 

requisite finding of necessity must of course be a case-specific one: 

the trial court must hear evidence and determine whether use of 

the one-way closed circuit television procedure is necessary to 

protect the welfare of the particular child witness who seeks to 

testify.”); Leggett v. State, 565 So. 2d 315, 318 (Fla. 1990) (“[T]he 

factual findings required by section 92.54 are necessarily related 

to the constitutional right to confrontation.”).

First, a trial court’s failure to make case-specific findings as 

required by statute can sometimes require reversal. See Feller v. 

State, 637 So. 2d 911, 914 (Fla. 1994). But Knight did not preserve 

any argument on this point, and a court’s failure to make the 

statutorily required findings is not fundamental error. Id. at 913-

14; see also Hopkins, 632 So. 2d at 1374-75. Therefore, the lack of 

findings does not provide any basis for reversal.

Second, Knight failed to preserve any argument that the court 

abused its discretion by failing to provide him a mechanism for 

communicating with counsel during the child’s testimony. 

Although defendants have “the right to immediate and direct 

communication with counsel conducting cross-examination,” 

§ 92.54(4), Fla. Stat., this right must be specifically invoked, id.

(“upon the defendant’s request, such communication must be 

provided by any appropriate electronic method” (emphasis added)); 

see also Myles v. State, 602 So. 2d 1278, 1281 n.2 (Fla. 1992) (“All 

that is required is that the means of instantaneous communication 

be supplied if requested.”). Defense counsel never requested that 

the court supply a means of communication, and Knight’s 

questions posed directly to the court were insufficient to preserve 

the issue for appeal. Cf. Farina v. State, 937 So. 2d 612, 629 (Fla. 

2006) (“[F]ailure to obtain a ruling on a motion or objection 

likewise fails to preserve an issue for appeal.”). We are therefore 

left to consider whether there was fundamental error, and we 

conclude there was not. Cf. Jackson v. State, 983 So. 2d 562, 575-

76 (Fla. 2008) (concluding that “the temporary absence of counsel, 

i.e., a partial deprivation,” is not fundamental error).

AFFIRMED.

M.K. THOMAS, J., concurs; BILBREY, J., concurs in result with 

opinion.
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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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BILBREY, J., concurring in result.

I fully concur with the majority decision as to defense 

counsel’s failure to preserve the trial judge’s lack of case-specific 

findings as required by section 92.54(5), Florida Statutes.

As to the failure to provide a means for Jonathan Knight to 

communicate with his counsel during the out of court testimony by 

the child victim, I believe this issue was preserved. Knight’s 

counsel raised the issue during the hearing conducted under 

section 92.54, and Knight personally raised the issue with the trial 

judge after counsel left the courtroom to set up the victim’s video 

testimony. Knight should have been provided “immediate and 

direct communication” with his counsel during the victim’s 

testimony. § 92.54(4). 

However, I believe any error in this regard was harmless. The 

harmless error standard applies to constitutional error. See 

Goodwin v. State, 751 So. 2d 537 (Fla. 1999). The harmless error 

standard therefore includes error regarding the right to counsel 

such as what occurred here. See Leerdam v. State, 891 So. 2d 1046 

(Fla. 2d DCA 2004). Knight’s counsel conducted a thorough crossexamination of the child victim, consisting of over twice the 

amount of questions as she was asked on direct examination. His 

counsel had a clear understanding of the relevant facts including 

various family members’ interactions with the victim. Knight’s 

counsel repeatedly attempted to impeach the credibility of the 

victim both regarding the crimes at issue and fact-specific 

collateral matters. It is apparent that Knight and his counsel had 

planned for and discussed the questioning of the victim prior to it 

occurring. 

Because I believe any error in denying Knight “immediate and 

direct communication” with his counsel was harmless, I agree that 
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affirmance is the correct result. See State v. DiGuilio, 491 So. 2d 

1129 (Fla. 1986); Mincey v. State, 684 So. 2d 236 (Fla. 1st DCA 

1996). 

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Candice Kaye Brower, Office of Civil Regional and Criminal 

Conflict Counsel, Gainesville, and Michael Jerome Titus,

Assistant Conflict Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Julian E. Markham,

Assistant Attorney General, Tallahassee, for Appellee.